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XIX. Prisoners’ rights

[1]

1. Some general data

79 750 people[2] have served a sentence in 177 institutions related to the management of the State Penitentiary Service of Ukraine (SPSU) as of December 1, 2014. At that 16 501 persons are serving a sentence in 23 predetention centers and 8 penitentiary facilities with function of a predetention center, 1991 persons of them at the stage of prejudicial inquiry, 5928 persons of judicial examination (before sentencing), 62 794 persons in 140 penitentiaries, 3820 people in 9 colonies of maximum security level; 24 766 people in 40 colonies of medium security level for repeatedly convicted persons; 18 469 persons in 34 colonies of medium security level for the first time convicted person; 2421 persons in 9 colonies of minimum security level with general incarceration conditions for man; 598 persons in 4 colonies of minimum security level with lite incarceration conditions for men; 29 525 persons in 14 colonies for women; 1456 persons in 6 specialized hospitals; 1726 persons in hospitals of juvenile correctional facilities and predetention centers; 2507 persons in 24 correctional centers; 455 persons in 6 juvenile correctional facilities (for minors). Among convicted persons 395 are serving a sentence by way of arrest in 59 jails at penal institutions (36) and pretrial detention centers (23); 1777 people are serving a sentence by way of life imprisonment. There is a tendency of reducinf the number of prisoners per 100 thousand of the population[3] that deserves a positive assessment.

2. Legislation

The main event of the year was adoption of the reform changes in the Penal Execution Code of Ukraine[4] as a separate law, which need the human rights organizations[5] has repeatedly insisted on. The regulation of criminal and penal relations has been significantly improved in the context of human rights, that immediately caused attempts of “rewriting the law” by National Offender Management Service with the aid of bylaws, as well as with preparation of a kind of “counter-project” of changes in Penal Code of Ukraine[6].

The principal change became the approach to the definition of prisoner labor related to their subjective right, according to the Article 26 of the European Prison Rules. If previously it was stated that the prisoners ... “have to work in places and jobs determined by the prison administration”, now prisoners “have the right to work” in such work places. This change demonstrates the final retreat of legislation from the Soviet corrective labor philosophy that consisted in direction of prisons activities to profit obtaining using the forced labor of prisoners.

Minimum amount being entered to an account regardless of all deductions was changed, from 15% to 25%. (Part 2 of Art. 120 Penal Code of Ukraine). The payroll deductions should no longer be sent to cover the cost of clothing, underwear, shoes, as it was before, but only for household and other rendered services. The order of pension registration for convicted persons (ch. 1–3 Art. 122 of the Code) has been settled — now work time while serving a sentences is directly included in the length of work (ch. 4, Art. 122 of the Code) and does not require a separate payment of premiums by convicted persons after their release, that was an unrealistic condition of the previous rules. From May till October 2014 the right to issue a pension has been exercised so far by 170 convicts[7].

It was extended a list of correspondence being not subject to review — now the correspondence with the courts refers to him (Art. 4, Art. 113 Penal Code of Ukraine). The definition of fulfilling of legal administrative requirements by convicted persons was changed. Instead of this they have to meet the requirements of colony personnel established by legislation (ch. 1, art. 9, ch. 3 art. 107)[8]. According to the human rights advocates the previous edition has been a source of tension and conflict in the institutions, because the prison staff abused it due blur category[9]. However, the former definition relatively the convicted persons to the restriction of liberty are still remaining and also being a component of foundation for application of the measures of physical coercion, special tools and weapons (ch. 4 art. 59 and ch. 1, art. 106 of the Code). So now there are some terminological inconsistencies requiring correction.

The article relating to transfer of convicted persons before deprivation of liberty has been significantly changed. Earlier the mitigation of incarceration conditions within the institution could be based on the fact that a convicted person “is entering the path of reformation”, now convicted persons have been “transferring” (ch. 1, Art. 101), that is more imperative requirement concerning the transfer of convicts.

However discretionary powers for evaluation “to enter/not enter the path of reformation” remains for the administration. Positive is specifying the characteristics of persons being not liable to transfer to the social rehabilitation section. Previously they were convicted persons, who were maliciously violating the requirements of the regime, and now — the persons having beforehand rescinded or not paid penalties in accordance with the law listed in ñh. 1 Art. 2. 101 Penal Code of Ukraine). Also new is that now persons being convicted of crimes related to trafficking in narcotic drugs, psychotropic substances, their analogues and precursors are liable to transfer to this section.

The number of publications is expanded, is allowed for convicts to carry: no more than ten books, and the number of newspapers and magazines are not limited (ch. 3 Art. 109). Previously the limit was not more than a ten books and magazines. In accordance with the amendments is prohibited unreasonable forced interruption of sleep of convicts at night, including specially for checking of convicts (ch. 5, Art. 8). Significant changes suffered the rules relating to public control over the rights observance of the convicts.

And long-awaited major change is the right for longstanding meetings for convicts.[10]

According to the information of A. Bukalova only 169 life sentenced convicts of 1800 received longstanding meetings during May and October that is, less than 10%. But any meeting has been received by convicts from Penal Colony Zamkova No. 58, Predetention Center Kyiv, Predetention Center Odessa. According to the statements of Penal Center, because of absence of statements from the convicts. However, according to the activist, there are reports that they refuse some life convicts to grant longstanding meetings due to lack of space for their conducting[11].

At the same time the relatives of persons being sentenced to life imprisonment complain on round-the-clock video monitoring in the room of longstanding meetings, according to relatives and convicted persons is a violation of their right to privacy.

The most “courageous” and controversial is to entrench the rights of all convicts to use mobile phones and the Internet (ch. 1, Art. 107), which caused serious frictions in the process of its implementation. But it is not allowed for convicted persons to carry most portable personal computers, mobile phones and related accessories. In other words there is a right, but there isn’t an opportunity for its implementation.

Despite the uniqueness of the Law on the right to use Internet and mobile communications, the head of SPSU adopted the restrictive ordinance No. 2/1/2-12/h on 08.05.2014, according to which access to mobile communications should only be allowed in case of absence of payphone or landline phone in the institution.

Given the fact that such devices there are practically in all institutions, the right to use mobile phones is now completely leveled. In addition, on 10.20.2014 was passed the order “On approval of the Procedure of allowing for convicts using Internet”, which maximum limits the right of prisoners to use Internet. It states that the list of web resources to which access is available for convicts, will be approved by the commission consisting of the head of the institution and the heads of structural divisions of the institution (Art. 2.1). Such a rule caused several adverse effects.

Firstly, complete discretion in the places and the difference between the possibilities of access to the different sites in different penal institutions that will actually constitute the principle of equality violation of convicts, enshrined in Article 5 of Penal Code of Ukraine. Secondly, the maximum restriction of the right to use Internet, because instead of approved type of comprehensive law regulation (which, incidentally, should be applied to convicts taking into account that they are subject to the Article 19 of the Constitution of Ukraine), which specifies that “is allowed everything which is not forbidden”, specially-allowed type of regulation is applied to convicted persons, that is, the principle of “allowed only what is expressly provided by law.”

An additional limitation is the norm of the paragraph. 2.2 of the Order, which determines that access is prohibited for convicted persons not only to certain web resources, but also to social networks and electronic mail. This prohibits the use of Internet as a mean of written communication that don’t conduce the building of positive contacts with outside world. Although, taking into account the complexity of the innovations implementation of Penal Code the administration of the State Penitentiary Service of Ukraine could use long-term experience of Norway, which is practicing scanner-firewalls for secure internet content[12].

Despite the fact that the Internal regulations include a phone and computer to prohibited items for storage, the right to have the necessary devices and accessories obtained person being sentenced to imprisonment (art. 59), as well as the convicted persons of social rehabilitation (art. 99). In this case, the latter have the right to carry only laptops, but not mobile phones.

Since the mechanism of right realization of convicted persons to use mobile phones remained unregulated, in practice it regularly raises a number of abuses by law enforcement officials in the form of establishing of additional restrictions. The main argument is the lack of the right to own portable phones and computers[13].

For example, the Sumy Regional Administrative Court referrers to it in its judgment of 17.09.2014, refusing a convict the right to use a mobile phone with accordance to the latest changes in mobile communication in Penal Code of Ukraine[14]. Similar is the reaction of the prosecutor’s office, which on the complaints concerning the failure of possibilities to use mobile communication refers to the fact that mobile phones are prohibited items[15].

It is worth to note that the Code remains the norm oriented to work as a legal obligation. Article 133 of the Penal Code of Ukraine states that “the worst violator of the established order of serving the sentence is a convicted person who fails to meet the legal requirements of administration, unreasonably refuses working (at least three times during the year) [...].” However this rule can be interpreted now two-way. The first variant — it is referred to self-service activities, improvement of the colonies, and such improvement are obligatory for the convicts (ch. 3 Art. 107 of the Code). The second variant — it is referred to production work in the institution. In this case it can be assumed that the refusal convicted person of work will always be justified, given that a rule was adopted which clearly entrenches the labor as a subjective right, and so he (she) can use it or refrain from using of his/her own free choice. This interpretation, however, does not exclude the abuse of outlined norm as a tool for labor enforcement, ignoring the changes in the Code. Moreover the Regulation on the State Penitentiary Service of Ukraine[16] in sec. 4. 27 determines that SPSU organizes the engagement of convicted persons to socially useful paid labor. All these defects need to be eliminated in order to adjust all labor rules of the convicts as their subjective right.

It seems that the most appropriate and so that is able to prevent abuses and to ensure the labor rights of convicts is the conclusion with them a common employment contract. SPSU should implement a reform in order to attract convicts to perform labor contract. Also taking into account the priority of attraction SPSU the convicts to socially useful work and new job creation it seems to be necessary to use foreign experience in this field[17]. For example, it would be appropriate to allow the convicts to create their own company to work “for themself” with conclusion of individual service contracts that can be performed in the conditions of imprisonment, while from their income would be carried out the necessary tax deductions, as well as contributions of civil suits and municipal services within the established limits.

Article 93 of Penal Code of Ukraine remains problematic, previously stated that a convict is serving his sentence in one penal or juvenile correctional colony, as a rule, within one administrative-territorial unit in accordance with his place of residence before conviction. Now it is “within the administrative-territorial unit in accordance with his accommodation before conviction or the place of residence of convict´s relatives (highlighted by the author).” In genera the positive direction of the norm in this case may lead to abuse due to lack of guidance on choice opportunity between the service of sentence in a territorial-administrative unit at place of residence or at place of residence of relatives, wherefore the choice will be left to the administration.

Among the general defects of regulation SPSU should be indicated the termination of the state target program of reforming of the State Penitentiary Service for 2013–2017 in accordance with regulation of the Cabinet of Ministers No. 71 of March 5, 2014 “Some issues of optimizing the state grant programs and national projects, budget savings and repeal of certain acts of the Cabinet of Ministers of Ukraine[18]”. A separate block is the question of possibility to premature releasing the convicts having been sentenced to life imprisonment life imprisonment, which legislative regulation is delayed, despite the relevant bill developed in 2014.[19]

It is required the improvement mechanisms of public discussion that SPSU introduced by development of regulatory acts[20] in 2014. For example, SPSU adopted decree “On procedure approval of delivery of health care for prisoners” No. 1348/5/572 without regard to any comment expressed by the Kharkiv Human Rights Group related to non-compliance of certain acts to the purposes of protection of human rights and certain international standards[21].

The draft of the new Internal work order rules of penal institutions expects its adoption; the Internal work order rules of pretrial detention centres having been introduced last year[22], are not been changed and sharply criticized by community. Is being developed The draft of order “On approval of legal acts regarding the use of technical means of surveillance and control in the penal institutions of convicted persons and persons being taken in charge” that requires significant improvement in consideration of privacy right observance as it provides an almost unlimited video monitoring.

The changes remain actual being expected the Order No. 1325/5 of the paramilitary unit of State Penal Service of Ukraine (Special Forces) in order to exclude from it the norms provoking serious collective conflicts in prisons. Thus, the Order does not reflect two main recommendations of Committee for Prevention of Torture in 2012: all actions of division must be fully recorded division on the form); every soldier during a special operation should have a sign that would be given the opportunity to identify it in the future n case of necessity to appeal his illegal actions. Among other things, the lack of perception of these recommendations resulted in the next scandal with excessive use of force by a special unit in Berdichev EC No. 70[23] in 2014.

On the 2 July 2014 the Cabinet of Ministers of Ukraine adopted a resolution “On approval of regulation of the State Penitentiary Service of Ukraine[24]”, which will increase the role of the Ministry of Justice to coordinate Service[25]. In particular, the appointment rules of chairman and his deputies SPSU are changed; it is prescribed that the annual work plan of SPSU should be approved by the Ministry of Justice, not just in agreement with him, as it was before. Also the structure approval of the territorial government SPSU, authorities and institutions is carried out in coordination with the Ministry of Justice.

Separate question is the implementation of international standards in national legislation, since the process of implementation of decisions ECtHR is inefficient as due to the fault of SPSU and also Government attorney for ECtHR. Thus, the execution of the decision in the case “against Ukraine Ohrimenko” indicates the need for changing the legislation of handcuffs using, as well as the detention order of convicts in medical institutions.

Inter alia because of the failure of previous decisions Sergei Volosyuk v. Ukraine and Belyaev and Degtar v. Ukraine it was found a violation of the privacy right of convicted person in case of Vintman v. Ukraine[26], because the existing verification procedure of correspondence contradicts the requirement of restrictions proportionality as national legislation essentially provides for a systematic, without additional justification, censor of incoming and outgoing correspondence of convicts and persons being under arrest[27].

As, for example, case decision of Vorobyov v. Ukraine[28], which Ukraine was convicted of a violation of Article 34 of the Convention, was a logical consequence of defiance previous Court’s decisions with similar problematic that demonstrated the disadvantages of laws and practices according to which it is difficult are or impossible for convicts to access their personal documents and make copies of them[29].

These cases of systematic defiance of decisions of ECtHR indicate the expediency of establishing a separate entity SPSU that would be responsible for the proper implementation of the decisions of international organizations[30]. Such a body is required and given the huge array of outstanding recommendations of the Committee of Ministers of the Council of Europe and the European Committee for Prevention of Torture and the UN Committee against Torture.

3. Rights of convicts on the occupied territories

3.1. Occupied Crimea

There are four places that actually turned out to be occupied owing to occupation of territory by Russian Federation on the territory of Crimea. This is the Kerch penal center No. 139 for 30 convicts, the Kerch penal colony of minimum security level number No. 126, is designed to hold 710 convicts and the Simferopol penal colony of medium security level No. 102 for 1470 convicts and the Simferopol pretrial detention center, designed for 1700 arrested people. The total amount of citizens of Ukraine, which turned out to be invalid to make decisions relating the constrained resettlement to the territory of mainland Ukraine, is about 3910 people. On the 15th of April 2014 the Verkhovna Rada of Ukraine passed the Law “On enforcement of rights and freedom of citizens and legal order on the temporarily occupied territory of Ukraine” (hereafter the Law). The law contains provisions that regulate the jurisdiction of criminal proceedings initiated on the territory of Crimea. Persons remaining in custody on the territory of Crimea, which investigation on, contrary to the law, is not transmitted to the competent authorities of Ukraine and continuing by unauthorized investigators in accordance with Russian law, have all the perspectives in the international judicial instances to restore their rights violated as a result of illegal actions of the representatives of Russian Federation. It primarily concerns the persons remaining in custody unlawful, and according to our survey about 200 people covered by the amnesty law in 2014. It is recognized that the persons found themselves in such a situation should apply to the appropriate law court of Ukrainian, receive decisions for their own benefit, and in case if these decisions will not be fulfilled by the occupation authorities of the Crimea — to apply further to protect their rights in international institutions

In addition the law enforcement of the Crimea massively resorted to illegal actions, forcing persons in custody to receive Russian citizenship in order of extending to them the criminal law of the Russian Federation. In this regard the Commissioner for Human Rights of the Verkhovna Rada has received more than 400 complaints of such persons for assistance in transferring to serve their sentences in mainland Ukraine[31].

3.2. Occupied territories of Lugansk and Donetsk regions: tens of thousands of hostages

There are 36 penal institutions in Donetsk and Lugansk regions (25% of the total number of institutions SPSU), 29 of which located in areas of possible military clashes or territory not controlled by Ukraine.

What is the fate of about 15 000 Ukrainian citizens having become hostages of the armed conflict unleashed by the Russian Federation? Will they forcibly be taken into the ranks of the self-proclaimed “DNR/LNR”? Will they receive a weapon and be demanded to war with their own folk? Will they be forced to dig trenches, to carry out the dirty work and shoot for disobedience? For example, the self-proclaimed DNR adopted its “Penal Code” that provides a death penalty. On the 22th of August it became known about seizure of prison in Donetsk by the separatists, the threat to execute all sentenced to life imprisonment and enforcement to join their ranks. On the 24th of July 2014 the spokesman for the National Security Council Information Centre reported that the militants in Gorlovka who had large losses of manpower, have released 150 convicts from a local colony, armed them and used to intimidate the local population and to resist to forces of ATO.

On the 10th of August 100 prisoners broke away in the evening from the penal colony No. 124 of Donetsk after its shelling. Only 34 people came back. Majority of them is now among the civilian population. It is possible that they join the ranks of the fighters. However, with five shells hit the territory of the colony one convict was killed, five got wounds of moderately severity. Also two prison officers were injured. At the end of August the Penal colony in Makeevka No. 32 was damaged, two convicts were dead, and 8 more were injured. It failed to save life of two of them in the hospital. In the morning they died from his injuries.

In this situation, unfortunately, because of the poor performance of the central office SPSU were evacuated only convicted of female Chervonopartyzansk penal colony (No. 68) in the Luhansk region for the entire period of ATO. At the same time the public reception of the Kharkiv Human Rights Group received disturbing reports from convicted persons from occupied territory (direct speech):

“In the colony 19 we have a long only one cabbage, in 38 and 36 some grain was delivered”. “In 57 they did not feed for two weeks. They came in the chevrons of Russian Special Forces. Around are standing their position. Food is not delivered. We were thrown and any is evacuates. Do you know how creepy to sit in the chamber on the first or second floor, where the shells are torn, broken rubble on the parade ground?! Terrorists were shooting, than they taken away two convicts. The administration removed then the chevrons and became to demonstrate the prisoners. A little more, and we will die of hunger, we want eating very much. We were told that we were evacuated on papers and there was not personal affairs there, they were taken in Mariupol, and then to Kiev. Mail does not work. The infirmary hadn’t medicines already for two months. In the colony remains of about 600 convicts, 138 of them in the chambers were sentenced to life imprisonment and the rest are on the open area“.

“ The convicted A. of Yenakievo penal colony No. 52 of maximum security of Donetsk region: “... in the morning we haven’t get feed — tea, a piece of bread, dinner — water, on the second- porridge without fat. Any has dating a long time and does not receive the food brought from outside, it is difficult to get us. 15 minutes ago it was bombed, you know, how terribly is when you cannot even hide in the shelter while bombing?! Two days we have no water, light appears intermittently”.

Alexander Gatiatulin, a spokesman for the All-Ukrainian Network of PLWH, notes that only thanks to the efforts of volunteers medicine is delivered for the patients with HIV-AIDS in prisons on the occupied territories, “Me and my colleagues in war conditions acutely aware, how important is to delivery of necessary drugs in time. In Lugansk region prisons are provided with drugs for the next six months. In Donetsk region such volume of drugs it has to be delivered”.

“Together with other dangerous of prisoners came also hunger in Donetsk. “Because the funding of penal institutions fulfills through the State Treasury, which working is stopped in connection with the fighting in a certain area of Donetsk and Luhansk regions. Therefore, the administration of these institutions cannot get money to buy food and feed the convicts, — said the head of the human rights organization “Donetsk Memorial” Alexander Bukalov. — Amount of these problems is growing daily, and in some colonies, and situation with food in some colonies is closer to the critical point. “Severe was the problem of food lack in Yenakiyevo penal colony (No. 52).

4. Recommendations

1. To the Verkhovna Rada of Ukraine:

—  to adopt the draft law “On Amendments to Certain Legislative Acts of Ukraine regarding the application of penalty of life imprisonment” No. 1218, which introduce a mechanism of parole of persons sentenced to life imprisonment, as required relevant standards of the Council of Europe;

—  to improve the procedure for the revision of sentences entered into force, in the case of decision deliverance on procedural irregularities of the ECtHR by conducting of preliminary investigation to ensure the right to a fair trial;

—  to complete the submission process SPSU to the Ministry of Justice, as mentioned in the PACE resolution number 1466 (2005);

—  to determine by procedural legislation of various justicement branches the order of proceedings of direct participation in court sitting of persons serving a sentence in custody as an judicial restraint, as appropriate, taking into account the decision of the Constitutional Court of Ukraine on the submission of a citizen of Troyan A.P. from 12.04.2012 No. 9-rp/2012;

—  to take in further working the bills prepared by the Kharkiv Human Rights Group to amend the Penal Code of Ukraine and the Law of Ukraine “On remanding into custody” to bring these laws into conformity with standards of the Council of Europe.

2. To the Cabinet of Ministers of Ukraine — to resume the State program of reforming the State Penitentiary Service for 2013–2017.

3. To the Ministry of Justice:

—  to conduct a comprehensive analysis of the current penitentiary legislation and its implementation in accordance with international standards;

—  to review the provisions of the Concept of the state policy in the field of reforming of the State Penal Service of Ukraine concerning the priorities of self dependence of penal institutions, as part of the involvement policy of convicts in socially useful work;

—  to stop the practice of poor rulemaking, by introducing the practice of public discussion of draft regulations relating to human rights, taking into account the public comments;

—  to adopt the draft of amendments to the Internal regulations of the prisons (Order of 18.03.2013 No. 460/5) based on the comments of experts;

—  to amend the draft of Internal regulations of the corrective labour institution and to take into account the comments of experts regarding violations of human rights standards by this document;

—  to improve the orders of Ministry of Justice “On approval of medical care organization for convicts” and “On approval of organization access to the Internet for convicts“; Order of State Penitentiary Service No. 1325/5 from 03.07.2013 “On approval of the territorial (interregional) paramilitary of State Penal Service of Ukraine” with taking into account the recommendations of international and national institutions;

—  to improve the draft of order “On approval of legal acts on the use of technical means of surveillance and control of convicted persons and persons taken into custody” to meet the requirements of right to privacy in the context of international standards;

—  to review the rules of goods maintenance for convicts in order to bring them into line with international standards and taking into account the comments of last year’s reports of expert organizations;

—  to regulate the organization of service of sentence on the occupied territories and territories of ATO (including the issue of extending the punishment, parole and other procedural aspects, issues of employment of employees Penal Service of Ukraine et al.);

4. To the State Penitentiary Service of Ukraine:

—  to change the priority policy of business activities of enterprises controlled by institutions with a view to receipt of profit and to take into account the requirements of the European Prison Rules regarding reintegration priorities of penitentiary production;

—  to resolve the conclusion an employment contract with the prisoners, as well as the opportunity to organize working for the convicts “at their charges” subject to payment of compulsory contributions;

—  to develop a sublegislative normative act for regulation of implementation of ECtHR decisions and recommendations of the Committee for Prevention of Torture at the level of State Penal Service, territorial authorities, as well as at the level of individual institutions subordinated to it;

—  to create separate units in State Penal Service, which would be responsible for the proper implementation of the decisions of the ECtHR, European Committee for Prevention of Torture recommendations and other international standards;

—  to raise efficiency and quality of departmental rulemaking with broad involvement of the public;

—  to provide free access to the website of State Penal Service to all information and documents in which it is contained, to implement the recommendations and decisions of the ECtHR European Committee for Prevention of Torture;

—  to stop the practice of formal discussion of normative act drafts with the public, but to start the procedure of writing appeals to relevant and interested non-governmental organizations for provision of appropriate proposals with their following full consideration;

—  to implement an effective system of complaints presentation and investigation, to stop the practice of punishing the convicted person for attempts to appeal the actions of the administration institutions;

—  to fix an exhaustive list of violations of the regime, for which the disciplinary divisions are applied with division of their severity level and the maximum possible measure of punishment for the violation of each type of severity;

—  to reassign the medical services of State Penal Service to the Ministry of Health;

—  to provide the institutions of the State Penal Service with confidential meeting with a lawyer;

—  to ensure the effective implementation of the right to legal assistance for prisoners in accordance with the Law of Ukraine “On legal assistance”, to enable the effective participation of a defender in examination of disciplinary penalties, worsening of detention and parole of convicted persons, as well as in preparation for such reviewing;

—  to change norms and practices to review the correspondence of convicts, as well as the classification of prisoners in accordance with the requirements of decision ECtHR “Vintman v. Ukraine”;

—  to contribute to clear normative regulatory of claims jurisdiction which the convicts use applying to the national courts as required by the decision ECtHR “Vintman v. Ukraine”;

—  to cancel the order No. 2/1/2-12/h on the use of mobile phones in penal institutions;

—  to regulate the mechanism of using Internet and mobile phones by convicts in compliance with provisions of national legislation and departmental normative acts.

[1] The section have been prepared by V. Chovgan and À. Didenko.

[2] The above mentioned statistics do not include persons serving a sentence in institutions of the Autonomous Republic of Crimea.

[3] Details: http://ukrprison.org.ua/news/1413267624

[4] Law of Ukraine “On Amendments to the Penal Code of Ukraine concerning the adaptation of the legal status of a convict in accordance with European standards”.

[5] It is also need to specially focus on and welcome the fact that the main advocate of the bill became Office of the Ombudsman.

[6] The project itself and its criticism see Chovgan V. O. Reforming of the penitentiary legislation in light of international standards (comments and suggestions) / Kharkiv LLC “PUBLISHING HUMAN RIGHTS”, 2014. — P. 28–82. (The publication is available on the library website of Kharkiv Advocacy: http://library.khpg.org), as well as see. documents on website of SPSU: http://www.kvs.gov.ua/peniten/control/main/uk/publish/ article / 741849

[7] http://ukrprison.org.ua/news/1418552399

[8] Constitution of Ukraine has always requirement, which bears a similarity with actual definition (art.).

[9] http://ukrprison.org.ua/index.php?id=1404107637

[10] See. analysis in detail: http://www.khpg.org/index.php?id=1400441733

[11] http://ukrprison.org.ua/news/1418552399

[12] http://www.theguardian.com/society/2008/nov/14/norway-prison-erwin-james

Firewall from the English, literally “wall of fire” — a device or set of devices configured to permit, deny, encrypt, passed through a proxy all computer traffic between different security areas according to a set of rules and other criteria. We are talking about the possibility of the administration of prisons to determine the list of websites, words, texts, which access would be blocked automatically to. In addition this approach would ensure an opportunity of uniform application of the law to all convicted prisoners and observance of the principle of equality, which will be violated as we mentioned.

[13] Father of native penitentiary (at that time correctional labor law) N. A. Struchkov expressed a thought very accurate and appropriate to the situation: “we cannot allow a person to formally had some rights, but in fact could not use them, we cannot allow a citizen had some responsibilities, but could not carry them out, because it contradicts the “spirit of socialist rule of law“ (N. A. Struchkov Course of corrective labor law. Problems of the general part. — M.: jurid. literature., 1984. — 182 pp., Natashev A. E., N. A. Struchkov Basic theory of corrective labor law. — M., 1967. — p. 121.)

[14] http://www.reyestr.court.gov.ua/Review/40619485

[15] It is worth to note that in some prisons to ensure the rights of convicts for phone calls the ordinary landline and mobile phones are sometimes used.

[16] http://zakon4.rada.gov.ua/laws/show/225-2014-%D0%BF

[17] http://kvs.gov.ua/Dost_publik/Propozicii_2015.pdf

[18] http://ukrprison.org.ua/expert/1397146062

[19] Didenko A., Chovgan V. Life imprisonment: European standards and Ukrainian practice. Ed. 2 Corr. and add. / Ed. E.Y. Zakharov. — Kharkiv: Human Rights, 2014. — 316 p. (Available on the link: http://library.khpg.org/http://khpg.org/files/docs/1409320826.pdf)

[20] It should be noted that an announcement appear in a special section of the site SPSU without notice on the home page. It doesn’t promote transparency and proper public involvement to the process and has to be corrected in the future. We are consider appropriate not only to publish a separate announcement on the website of Department, but also the implementation of its distribution to the email addresses of public organizations working in the penitentiary system, because SPSU should be interested in their involvement in the first place.

[21] See Chovgan V. Reforming of legislation that regulate health care of convicts, in the observance of human rights in the penitentiary system of Ukraine / K. A. Artukhov, A. P. Gel, M. V. Romanov, V. A. Chovgan, I. S. Yakovets; edited by E. Y. Zakharov. — Kharkiv LLC “Publisher human rights” in 2014. — p. 213–228 (publication is available on the website of library of Kharkiv Human Rights Group: http://library.khpg.org); Aschenko A. M., Chevgan V. A. Ukrainian penitentiary legislation in light of the standards of the UN Committee against Torture and the Council of Europe / A. N. Aschenko, V. A. Chevgan; foreword. M. M. Gnatovskogo; under general. ed. E. Y. Zakharova. — Kharkiv: Human Rights in 2014. — p. 72–88 (available at the link: http://library.khpg.org/http://khpg.org/files/docs/1413663568.pdf)

[22] See last year’s report: #_ftnref9; For details see the report of the Donetsk Memorial: http://ukrprison.org.ua/publication/1410110906

[23] See video of joint press conference of Kharkiv Human Rights Group and a representative of SPSU: http://www.khpg.org/index.php?id=1416566453

[24] http://zakon4.rada.gov.ua/laws/show/225-2014-%D0%BF

[25] In previous reports of human rights organizations it has repeatedly called attention to the need for further resubordination of the prison department to the Ministry of Justice, as required by international organizations, which members is our State.

[26] http://www.khpg.org/ru/pda/index.php?id=1415653612

[27] More about the violation of the Convention by existing order of “viewing” of convicts’ correspondence see: Chovgan V. A. The right to written correspondence in the publication of Observance of human rights in the penitentiary system of Ukraine (cit. above). — p. 257–266 (publication is available on the library website of Kharkiv Human Rights Group: http://library.khpg.org)

[28] http://www.khpg.org/index.php?id=1415654102

[29] Namely refusal of prison administration to provide copies of documents, required by the Court, became the cause of a violation of article 34 of the Convention in decision “Ustyantsev v. stolen” (3299/05), in case of “Vasily Ivashchenko v. Ukraine” (760/03), according to which the convict was refused to receive copies due to the fact, that he had the right to carry only his sentence (the corresponding norm, by the way, is enshrined today in the Internal regulations of penal institutions and requires changes, as we pointed out in the project analysis of the Internal regulations of penal institutions). In the decision Naydon v. Ukraine (Naydyon v. Ukraine) the Court made it clear counterbalance to the government’s argument that he had no obligation to make copies, the Art. 34 of the Convention places on States-Parties a positive obligation not to interfere with exercitation of rights of individual petition, in particular, to give the applicants a copy of the documents being necessary for the proper consideration of their applications.

[30] #_ftn34

[31] http://zakon2.rada.gov.ua/laws/show/1246-vii; Human rights on the occupied territory of the Crimea // http://www.khpg.org/index.php?id=1404910099