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09.04.2020 | Mykhailo Romanov, Ph.D, associate professor of Yaroslav Mudryi National Law University, expert of criminal enforcement law in the Kharkiv Human Rights Protection Group
Penal institutions

Measures to prevent spreading of COVID-19 epidemic in penitentiary institutions of Ukraine (updated)

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Faced with the challenge of wide spreading infectious disease worldwide, the human community does not always demonstrate the ability to effectively prevent the spread of the disease. The epidemiological situation in many countries of the world has forced governments to take unprecedented measures to curb the rapid spread of the disease. However, even in the face of harsh measures, some facilities are still overlooked by governments and society, while being one of the most dangerous sources of disease spread and dissemination. These are places of deprivation of liberty in general, and in particular penitentiary institutions.

According to the Ministry of Justice, more than 52,000 people are currently being held in Ukrainian prisons and pre-trial detention centers. 28,000 employees need to be added to this number, and we will get a real picture pointing to another risk group we should keep in mind when talking about fighting COVID-19.

It should be noted that prisoners and personnel of penitentiary institutions are indeed at increased risk of morbidity, as those institutions are places of high concentration of people; such places cannot be eliminated, and they have long been recognized as sources of the spread of dangerous infectious diseases, such as tuberculosis, hepatitis, and HIV infection. Furthermore, penitentiary institutions had, and continue to have, major problems and difficulties with health care. Now that Ukraine and the world are confronted with the widespread disease, the most effective measures are those taken in countries where health care is at a proper level and for which an outbreak of infectious diseases is a problem that the relevant healthcare system can cope with.

It is clear that in Ukraine, especially at times when the medicine is in a state of permanent reformation, the issue of creating the conditions to effectively prevent the spread of COVID-19 could become fatal. However, it should also be noted that not only Ukraine is going on the razor’s edge in the matter of prevention of coronavirus in prisons. Italy faced a similar problem, which incidentally led to mass riots. In this seemingly well-to-do country, there was a wave of riots among prisoners due to their fears about ensuring their health and getting adequate medical care. Introduction of quarantine measures has led to riots in many penitentiary institutions in Italy, and nearly 100 prisoners have escaped. That said, it is probably impossible in the current situation to prosecute those who have escaped, since their fears about safeguarding their health are likely to be justified.

Therefore, the purpose of this review is to identify and describe the problem area in the form of penitentiary institutions that contain prisoners who form a group vulnerable to COVID-19 and in which, despite the relative manageability of the whole system, it will be very difficult to stop the spread of the disease, if it occurs in institutions.

Based on the stated purpose, we would like to draw attention to the problem of the spread of COVID-19 in penitentiary institutions, to propose specific measures that can help to prevent the uncontrolled spread of the disease, and to come up with proposals that may be useful in putting them into the practice of the State Criminal Enforcement Service of Ukraine.

Currently, a whole set of recommendations and measures has already been developed at the international level that need to be established and implemented within the penitentiary institutions and which should help to take control and manage the situation. This work has been done by many international institutions, including organizations such as Penal Reform International, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Amnesty International, Office of the United Nations High Commissioner for Human Rights, Human Rights Watch (HRW), Association for the Prevention of Torture (APT), the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), WHO, which issued the Interim Guidance on COVID-19 in Prisons, the US Federal Bureau of Prisons, and John Hopkins University.

All these organizations have made efforts and formulated some recommendations.

Those recommendations were worked up by the Danish Institute against Torture (DIGNITY) and consolidated in the Global Guidance and Recommendations on How to Prevent and Manage COVID-19 in Prisons.

The first thing that international institutions notice is the state’s obligation towards prisoners to be responsible for proper and safe conditions of detention. In particular, it includes allowing them to receive medical attendance equivalent to that in free conditions, and access to health care.

Unfortunately, this recommendation is probably one of the most difficult ones in our country’s legal reality, since it is the improper conditions of detention in penitentiary institutions that pose the greatest danger to society, even without the threat of uncontrolled spread of infectious diseases. Excessive concentration of prisoners, inadequate material and sanitary and hygienic conditions, lack of adequate medical care, and sometimes lack of any medical care at all, high levels of infectious and chronic diseases among prisoners — this is far from being an exhaustive list of problems that have a systematic character in Ukraine’s criminal enforcement system.

The next recommendation is the need to develop and publicly disclose plans for measures to prevent and control the spread of COVID-19 virus in penitentiary institutions. 

For its implementation, the leadership of the State Criminal Enforcement Service of Ukraine (DKVS) issued the following documents:

- Order of the Ministry of Justice “On Prevention of the spread of the COVID-19 coronavirus at the premises of penitentiary institutions, pre-trial detention centers, and health care institutions of the DKVS” (hereinafter “the Order”);

- Order No. 57-OD / 08 / OD-20 of the State Institution “Health Care Center” and the Department for Enforcement of Criminal Penalties “On the approval of the Plan of anti-epidemic measures to prevent the entry and spreading of acute respiratory disease caused by the novel coronavirus in penitentiary institutions and pre-trial detention centers of the DKVS of Ukraine for 2020” dated 12.03.2020 (hereinafter “the Joint Order”);

- Letter No. 1/1-243/tv from the Department for Enforcement of Criminal Penalties dated 17.03.2020 (hereinafter “the Letter”).

Considering the text of these documents, we see that they are mostly formulated in line with the recommendations developed nowadays in the medical and administrative fields, which are intended to help prevent the spread of the disease. However, there are also some national specifics. The Appendix to the Letter contains recommendations on the purchase and accounting of disinfectants and protective tools, and the content of those recommendations makes one think that the purchase of these products is not always technically possible. From these recommendations, one may conclude that the non-medical institutions of the DKVS are not able to purchase medical items without violations of budget spending discipline. After all, the higher authorities recommend that those institutions record these assets as “Household supplies and stationery”. The above statement shows not so much that there are violations, but rather the lack of flexibility of regulatory requirements, which often hinder the implementation of the necessary measures.

In fact, among the measures of prevention, the legislator also calls for the restriction of visits to institutions, restriction of movement of staff, reduction of mass social events with prisoners, restriction of movement of prisoners between institutions, switching of prisoners’ communication with outside world to online channels, switching of court sessions with the participation of prisoners to online conference mode, the possibility of introducing the regime of special conditions provided for by Art. 105 of the Criminal Enforcement Code of Ukraine, etc.

Therefore, we can be sure that at the regulatory level, the leadership of the criminal enforcement service has responded in a timely and complete manner. Nevertheless, the main issue is still the implementation of these measures in practice and the real situation with the provision of sanitary and hygienic well-being in penitentiary institutions.

It should be noted that, according to the prisoners, a considerable number of anti-epidemic measures are implemented in practice. At least some of those sentenced to life imprisonment report that communication with the outside world has indeed been switched to video conferencing, meals are arranged within the premises where prisoners are held, parcels are received using personal hygiene tools – gloves and masks. Besides, the parcels are pre-stored for 24 hours, and only afterwards they are given to the convict. Movement of prisoners to courts and between institutions is reduced. On the other hand, however, many of the requirements that may be crucial are not practically fulfilled. For example, nothing has changed in the movement of prisoners within the camp, no additional sanitary restrictions have been imposed for bringing prisoners to the workplaces. Disinfection in institutions is carried out with excessive use of such agent as chlorine, which is itself a toxic substance that can lead to poisoning, which acts, by the way, through the human respiratory system. Among the shortcomings, prisoners also mention the inability to engage in physical exercises, which is important in the context of lowered immune capacity of the prisoners’ bodies. Prisoners are not always allowed to take a walk in the open air, which also does not help to maintain their respiratory organs in proper condition. A major problem is the ability to ensure the recommended social distance in the institutions where prisoners are held, as well as lack of awareness among the prisoners about the desirable behavior algorithms in preventing the disease and in cases where certain symptoms of the disease are detected. Other problems mentioned include the lack of disinfectants, lack of 100% temperature screening of prisoners, and lack of disinfection of common facilities. According to prisoners, one of the main shortcomings of anti-epidemic work is that the staff does not comply with the requirements of preventing the spread of the disease, in particular, by not using personal protective tools.

Human rights defenders and public monitors have repeatedly drawn attention to these shortcomings. At least the Ministry of Justice officials themselves understand the current threats and challenges. However, in this case, there is a danger that can quickly become a reality in conditions where prisoners are isolated from the society.

Another recommendation is that all actions further limiting freedom (e.g. medical isolation, reduced visits, etc.) should:

a) have a legal basis;

b) be limited in scope and duration;

c) be really necessary and in line with best scientific practices;

d) not to be or seem punitive.

This point is extremely important, as there is now a kind of “race” for the introduction of “severe” quarantine, with the maximum and often unjustified restrictions on the rights and freedoms of not only prisoners but also free people. That is why it is crucial to address the issue of adequacy of quarantine measures to the degree and intensity of the threat. As those measures are introduced, it must be understood that those sentenced to imprisonment or restraint of liberty are persons who are subject to the coercion, which is determined by a certain measure and by legal expediency and is related to the criminal offense committed by the person. Thus, the measures taken should never be of punitive nature. Oddly enough, it is much easier to achieve in penitentiary institutions than in free conditions. For example, if there is an adequate supply, it is institutions where it is much easier to provide all prisoners with personal protective tools. It is institutions where it’s easier to ensure 100% temperature screening of prisoners and their medical examinations, etc. On the other hand, such measures are much more difficult in a free society, since restrictions on human rights and freedoms must always have their grounds and limits. Unfortunately, currently we sometimes see unjustified and devastating prevention measures.

With regard to the prisoners, it is unclear concerning the above recommendations that control over the implementation of the COVID-19 prevention plan among prisoners is the responsibility of the “CYCLON-CENTER” paramilitary unit commander. Should security forces be involved in the implementation of anti-epidemic measures? How can “experts” in suppression of mass riot influence the improvement of sanitary and hygienic conditions and compliance with quarantine measures by staff and prisoners?

One of the main recommendations is prescription on the expediency of reducing the number of detainees (supervised / conditional / early release of low-risk prisoners, for example, those where there are grounds for release, or who are on pre-trial for lesser crimes). There is also a recommendation to consider the possibility of applying alternative restraint to persons subject to pre-trial proceedings and suspending a sentence of imprisonment.

Based on the above recommendations, and taking into account that penitentiary institutions are places of concentration of people, the first and possibly one of the most effective measures to counter the spread of COVID-19 is the release of certain categories of convicts and those who are under custody based on appropriate legal grounds.

This is one of the most frequently applied measures in other countries of the world. An example would be France, where in March the Minister of Justice initiated the early release of several thousand prisoners whose sentence was nearing its end. In Iran, about 70,000 people have been released from prison. In some other countries, the same practice was used.

In Ukraine, the most important issue in countering the spread of COVID-19 in penitentiary institutions should currently be the release of prisoners. The most common and universal practice is the release based on the amnesty law and the parole of prisoners.

Verkhovna Rada of Ukraine is currently considering the draft law No. 3181 “On Amnesty in 2020”, which, in our opinion, should be given an urgent status. However, according to the Ministry of Justice, there are about 1,000 people to be released under that law. This number of prisoners is too small, given the epidemiological situation. Therefore, we believe that it is necessary to expand the number of released persons and to introduce a broader amnesty. In our opinion, the emphasis should be placed on full amnesty, rather than the reduction of the sentence, and a norm should be introduced in the draft that will allow releasing the largest number of prisoners. Those who are to be released should include elderly persons convicted of minor, moderate and grave crimes with less than one year remaining until their release scheduled according to the sentence. Besides, the possibility of amnesty release of persons convicted of crimes other than those related to infringement on human life or health (non-violent crimes) should be analyzed and evaluated. We also consider it possible to suggest the release under an amnesty for all prisoners, regardless of the crime committed, who have three months or less remaining until their scheduled release. That is, those who are actually on “preparation courses for release” and are subject to penitentiary probation measures (specific proposals for the wording of the articles of the respective draft law are set out in the annexes).

Concerning another way of the release of convicted persons, which is parole, we consider it possible during the quarantine measures to apply temporarily the practice of “automatic” release on such grounds of persons who formally satisfy two criteria formulated in the law, namely: they have served a certain part of the sentence, and there is proof of them getting up to the path of rehabilitation. We believe that if there are formal indications of these criteria for such persons, the release on parole should be carried out as quickly and easily as possible. Such release can also be carried out by court procedure, but within the shortest possible time. In this case, delaying the parole procedure can be fatal.

We believe that the rapid implementation of these two practices will allow the release of about 3 to 5 thousand prisoners.

To continue the topic of reducing the “population” of places of deprivation of liberty, attention should be paid to pre-trial detention centers. It is these institutions that are a big problem because they hold a large number of people in disastrous conditions, which, even with some efforts, cannot be changed significantly in the short term. Therefore, pre-trial detention centers should be unloaded by avoiding the choice of custody as a measure of restraint for “new"” suspects, accused and defendants, as well as by quashing the chosen measure of restraint for those who do not put significant levels of social danger, do not pose a threat to society and for which there is minimal doubt about their possible evasion from the investigation and the court trial. We believe that such persons can include all those who committed negligent criminal offenses, persons who have committed minor and moderate crimes, as well as those whose detention is to expire within one month and who do not demonstrate such conduct that indicates a significant public danger of such persons. In such cases, it is advisable to involve probation authorities, which will be able to provide options for pre-trial reports characterizing the persons released from custody and assess the risks of re-offending by such persons.

We also consider it appropriate to consider the most loyal approach to the release of persons sentenced to a restraint of liberty. Such prisoners should also be released on amnesty, and there is a need to consider the widespread use of substitution of the non-served part of the sentence with a more lenient type of punishment, which would not be include imprisonment or restraint of the liberty. Moreover, the procedures for their release should also be maximally facilitated and expedited.

The recommendation for testing for the SARS-CoV-2 virus as per health authorities’ recommendations seems to be applicable not only to prisoners. Unfortunately, Ukraine is currently unable to provide such testing for free citizens, let alone prisoners.

We have reviewed recommendations on prevention of virus spreading among the prison staff and prisoners, and found that some measures have been taken and efforts made in this area that, unfortunately, are still insufficient and not always fully implemented.

The proposal on containing the virus within prisons and and mitigating its effect is fully related in our national circumstances to the issues of supporting the criminal enforcement service. Currently, the Ministry of Justice has received additional targeted funding of UAH 3.6 million, which should be directed for the purchase of protection tools and other anti-epidemic measures. Undoubtedly, this amount is not enough to provide adequate supplies to institutions and prepare them for the possible spread of the disease. Therefore, priority should be given to measures concerning the expansion of the campaign for the release of prisoners, as well as administrative and managerial steps to optimize the work of the institutions themselves, identify premises for the isolation of patients, introduce measures to prevent entry into the institution of persons or objects that can carry the virus into the premises, optimize and adjust medical support, provide examinations and consultations for prisoners and staff of the institutions.

Recommended alternative/compensation strategies for visitation (e.g. video conferencing, more telephone access, etc.) have been fully implemented to this date in penitentiary institutions. This direction is probably one of the easiest among the others.

Unfortunately, the recommended measures aimed at maintaining the health of prisoners are not being implemented today. However, this strange tendency is also observed among the free population. All the measures implemented are actually aimed at preventing citizens from maintaining their health. This is an unacceptable practice that needs to be reviewed immediately.

An important point in the recommendation is to ensure that released individuals have access to appropriate accommodations and health care services. This area falls within the competence of the probation authorities, which are responsible for the execution of penitentiary probation. After all, in quarantine conditions, it is necessary to pay attention to the fact that the released prisoners should not end up on the street at the time when most agencies, services, and institutions work via online channels or do not work at all. Otherwise, we will get the opposite situation, when released persons will not be able to satisfy even the minimal social needs and when faced with this, they will join the risk groups in terms of the possibility of disease.

Having listened to the recommendation on ensuring the opportunity to provide direct assistance to prisoners, we have to state that such a possibility does not exist in quarantine situation in Ukraine. Currently, it is difficult to implement normal permission procedures for free citizens. After all, it is necessary to create a temporary unit or service, which would be able to assist urgently a convict who had ended up in a difficult situation due to the disease. It seems consistent to temporarily delegate such functions to the administrations of penitentiary institutions in case of a convicted person serving a sentence, or to a probation authority in case of a released convict. This recommendation is closely related to the previous one.

At the same time, the recommendations suggest not to stop the practice of visits to penitentiary institutions, but to find alternative ways of their monitoring to establish the real status of ensuring quarantine measures and their observance and influence on the status of prisoners.

CONCLUSIONS:

1. To conduct a campaign to reduce the number of convicts held in prisons and detainees placed in pre-trial detention centers.

2. To carry out an information campaign, its goal being not dissemination of statistics on COVID-19 morbidity but informing about the etiology of the disease, its progression, ways of prevention and action to take in case of COVID-19 disease.

3. To evaluate the actual state of readiness of the criminal penalty enforcement system for the outbreak of the COVID-19 disease epidemic. In particular, to establish the availability of places for isolation of patients, to work out an algorithm for actions in case of spreading the disease within the institutions, to identify the resources in terms of availability of health professionals who can be involved in the work with prisoners, as well as the list of medical institutions where the prisoners can be sent if their disease progresses in a severe way.

4. To provide funding for appropriate areas of of the criminal executive service’s activities to properly supply institutions with protection tools and disinfectants.

5. To take measures to reduce the possibility of the virus spreading through the staff of institutions. To this end, to suggest that during the quarantine staff of the institutions should reduce their contacts and restrict their movement, limiting it to their relatives and near ones. To conduct mandatory disinfection, medical examination, and temperature screening of staff every day before commencing work.

6. To limit the possibility of introducing the disease by the prisoners, especially those who have the opportunity to leave the premises of the penitentiary institutions. To this end, for the duration of quarantine, if it is impossible to release the convict, to prohibit such persons from leaving the premises of the institution and to restrict communication with the outside world. In cases where it is impossible to implement such measures, to provide the convict with personal protective equipment and oblige to observe social distancing and quarantine restrictions imposed on free persons.

PROPOSALS FOR CHANGES AND AMENDMENTS TO THE DRAFT LAW OF UKRAINE No. 3181 «ON AMNESTY IN 2020»:

To amend the draft Law of Ukraine No. 3181 «On Amnesty in 2020» with the following provisions:

To release from penalties in the form of imprisonment for a certain term, as well as other penalties not related to imprisonment:

- persons who have reached by the date this Law enters into force the pension age established by Article 26 of the Law of Ukraine «On Mandatory State Pension Insurance», old persons, disabled persons of Categories 1, 2, and 3, pregnant women and whomen having children aged up to three years;

- persons convicted for grave crimes, who have less then one year of their sentence term remaining until their release;

- persons convicted for crimes other than those related to infringement on human life or health (non-violent crimes), who have served at least one half of their sentence term;

- prisoners, regardless of the crime committed, who have three months or less remaining until their release and who have been subject to penitentiary probation measures.

To amend paragraph (a) of Article 9 to read as follows:

a) who have committed, after the sentence was passed but before having fully served their sentence, another intentional crime, except for those sentenced, while serving their sentence, under Article 391 of the Criminal Code of Ukraine.

EC Project «Making Ukraine resistant to torture, ill-treatment and impunity»

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