Problems of reforming the penitentiary system of Ukraine and the draft of the Penal Code
21.05.2000
Ukraine is one of the European champions in the number of the incarcerated. According to Ivan Shtanko, the head of the Penitentiary Department, there are 32 preliminary prisons, 129 penitentiary establishments for adults and 11 colonies for minor criminals. On 1 July 1998 these establishments contained 236 thousand, which makes 472 per 100 thousand of population (see the newspaper ‘Den’ of 13 August 1998). Not long ago, in 1994 there were 161 thousand of the incarcerated, i.e. 310 per 100 thousand. This growth is due, in our opinion, to the escalation of the economic crisis and the general tendency of making the penal policy more cruel, as a reaction to the growth of crime. A vicious circle appeared: in order to diminish crime the state uses more and more cruel measures of punishment, which result in the growth of the number of convicts, in the deterioration of living standards in penitentiary establishments, which results in the growth of recidivism and in a more cruel society, as a whole, which results in the further growth of crime and so on. The society lacks resources for the construction of new penitentiary establishments, and the inadequate financing for the existing establishments is not given in the planned quantities. That is why all our discussions on the reformation and humanization of the penitentiary system will remain empty words, until the penal policy is as cruel is it is and the penitentiary establishments are given the duty to reform and correct the convicts. I believe that penitentiary establishments must execute punishment, i.e. carry out a complex of restrictions relative to the convicts and minimize the damage done. As to correcting and reforming convicts, this is the task for the entire society, not for the prison personnel. To facilitate the participation of the society the penitentiary system must become more open. What concerns minimizing the number of the incarcerated, it is the task of the legislator, who must change the Penal Code and the judicial practice by introducing alternative punishments.
Yuri Kravchenko, the Minister of the Interior, once said that preliminary prisons contain two times more prisoners than their capacity allows and that the colonies of the strengthened regime contain 13 thousand extra convicts. According to the data obtained by us from the Ministry of Interior, on 30 January 1994 30 Ukrainian preliminary prisons, with the total capacity of 11300, contained 38900 prisoners, i.e. 3.44 times more than according to the norms. Since that time the situation has hardly improved, since the number of criminal cases considered by courts increases every year. Aleksandr Ptashinsky, deputy head of the Penitentiary Directorate of the Ministry of Interior, quoted such data: on 1 February 1997 32 preliminary prisons contained 43700 prisoners. He mentioned that 3 preliminary prisons with the total capacity of 1800 convicts had been opened during the last five years (the newspaper ‘Den’ of 26 March 1997). It follows from here that the problem of overcrowding preliminary prisons remains very pressing.
Colonies are overpopulated too. By the data on 1 February 1997 about 173000 convicts filled 137 colonies of the total capacity of 166000 (the newspaper ‘Den’ of 26 march 1997). These are average data, and certainly in several places the situation is much worse. For example, in the colonies of strengthened regime of Donetsk region the ratio of the incarcerated to the nominal capacity is 1.73. Such conditions result in the growth of diseases. The only realistic way out is not to build more prisons, but to apply alternative kinds of punishment. Even in the opinion of the prison personnel more than 30% of the incarcerated should have been punished otherwise. According to Aleksandr Ptashinsky, 85800 criminals out of 242100 condemned were incarcerated, 56.6% of them for short terms. It can be concluded from here that the proportion of those, who can be punished without incarceration, is rather large. What concerns overcrowding preliminary prisons, the administration of the penitentiary system believes that about 57% of the inhabitants of preliminary prisons could have been released on bail.
The Supreme Rada adopted in the first reading the modified draft of the Penal Code. It is important to understand what positive changes the draft contains. To our pity, we have to say that the new Code is, upon the whole, more cruel than the operating one, and the upper limits of incarceration are longer. Nonetheless, the variety of punishments is greater in the new Code, so the situation in penitentiary establishments will much depend on the judicial practice. The draft contains no mention of probation; among new measures of punishment the arrest from 1 to 6 months is mentioned and the restriction of freedom, which is explained as follows: ‘A person is kept in penitentiary establishment of the open type without the isolation from society, under observation and with the compulsory duty to work’. This kind of restricting freedom may be applied for the term from 1 to 5 years. According to the authors of the draft, this measure will be introduced instead of the existing colonies-settlements. No other details of such punishment are given in the draft. To our pity, the draft considers reforming and correcting convicts as one of the goals of the prison personnel, which imposes on the personnel the function beyond its strength.
There is one aspect more concerning the topic under consideration. The draft of the Penal Code does not stipulate responsibility for such a crime as torture. In the conclusions and recommendations of the UNO Committee against torture of 30 April 1997, which are based on the 3 rdperiodical report of Ukraine on executing the UNO convention, it was clearly and distinctly suggested to define the notion of torture in the legislation and to stipulate responsibility for torture. On 4 November 1998 the European Committee on torture considered the report on the visit of Committee delegation to Ukraine, and soon we shall learn about the conclusions of European experts. I believe that the conditions of upkeep in some penitentiary establishments will be regarded as torture. Our supposition is based on conclusions of the Special reporter of the UNO Commission on human rights Nigel C. Rodley, who visited Russia on the invitation of the Ministry of Interior in order to inform him on the course of the court reform and measures taken to improve the status of convicts. Mr. Rodley made the following report (Document E/CN.4/1995/34/Add.1). In the Section ‘Conclusions and Recommendations’ Mr. Rodley wrote the following:
‘The conditions of upkeep of inhabitants of the Butyrskaya prison and in the preliminary prison ‘Matrosskaya Tishina’, especially in so-called common cells, are terrifying. It seems they are not unique in Russia in this respect. I would need the poetic talent of Dante and the artistic mastery of Bosch to depict the hellish conditions which I observed in the cells. It revolted my fealings of smell, touch, taste and vision. The conditions are cruel, inhumane and degrading; such standard of living is a torture. In the preliminary prison people are kept with the purpose of forcing them to confess. It is equivalent to torture.’
Alas, Ukrainian conditions do not differ much from Russian ones.
As we have pointed before, the Ukrainian legislation does not contain a definition of torture or cruel and degrading treatment. Something similar is listed in the articles for misuse of power followed by ‘violence, applying of weapons, or actions which torment and insult the victim’ (Article 166 of PC of Ukraine, Part 2), thus forcing to confess the suspect, ‘combined with application of violence or mockery and insulting the interrogated’ (Article 175 of PC of Ukraine, Part 2). These crimes, according to Article 7-1 of PC of Ukraine, are grave; they remain grave in the draft of the new Code. Nonetheless, the absence of clear and distinct definitions of torture and degrading treatment harasses the qualification of some actions of state officers. Owing to this, many criminal actions of state officers remain unpunished and, what is worse, are understood as normal.
It should be noted that the prison personnel is a hostage of the situation because they themselves cannot improve the conditions of upkeep of prisoners. Nonetheless, the existing objective reasons which cause inhumane conditions in penitentiary establishments (such reasons as insufficient financing due to the economic crisis) cannot be regarded as mitigating. The references to the public opinion as the basis for making penal legislation more cruel are incorrect. Cruelty breeds more cruelty and this escalation of cruelty is one of the reasons of the growth of crime. Changing the situation needs, first of all, the comprehension of the problem and the political will of the legislators. It is necessary to break the vicious circle.
Yuri Kravchenko, the Minister of the Interior, once said that preliminary prisons contain two times more prisoners than their capacity allows and that the colonies of the strengthened regime contain 13 thousand extra convicts. According to the data obtained by us from the Ministry of Interior, on 30 January 1994 30 Ukrainian preliminary prisons, with the total capacity of 11300, contained 38900 prisoners, i.e. 3.44 times more than according to the norms. Since that time the situation has hardly improved, since the number of criminal cases considered by courts increases every year. Aleksandr Ptashinsky, deputy head of the Penitentiary Directorate of the Ministry of Interior, quoted such data: on 1 February 1997 32 preliminary prisons contained 43700 prisoners. He mentioned that 3 preliminary prisons with the total capacity of 1800 convicts had been opened during the last five years (the newspaper ‘Den’ of 26 March 1997). It follows from here that the problem of overcrowding preliminary prisons remains very pressing.
Colonies are overpopulated too. By the data on 1 February 1997 about 173000 convicts filled 137 colonies of the total capacity of 166000 (the newspaper ‘Den’ of 26 march 1997). These are average data, and certainly in several places the situation is much worse. For example, in the colonies of strengthened regime of Donetsk region the ratio of the incarcerated to the nominal capacity is 1.73. Such conditions result in the growth of diseases. The only realistic way out is not to build more prisons, but to apply alternative kinds of punishment. Even in the opinion of the prison personnel more than 30% of the incarcerated should have been punished otherwise. According to Aleksandr Ptashinsky, 85800 criminals out of 242100 condemned were incarcerated, 56.6% of them for short terms. It can be concluded from here that the proportion of those, who can be punished without incarceration, is rather large. What concerns overcrowding preliminary prisons, the administration of the penitentiary system believes that about 57% of the inhabitants of preliminary prisons could have been released on bail.
The Supreme Rada adopted in the first reading the modified draft of the Penal Code. It is important to understand what positive changes the draft contains. To our pity, we have to say that the new Code is, upon the whole, more cruel than the operating one, and the upper limits of incarceration are longer. Nonetheless, the variety of punishments is greater in the new Code, so the situation in penitentiary establishments will much depend on the judicial practice. The draft contains no mention of probation; among new measures of punishment the arrest from 1 to 6 months is mentioned and the restriction of freedom, which is explained as follows: ‘A person is kept in penitentiary establishment of the open type without the isolation from society, under observation and with the compulsory duty to work’. This kind of restricting freedom may be applied for the term from 1 to 5 years. According to the authors of the draft, this measure will be introduced instead of the existing colonies-settlements. No other details of such punishment are given in the draft. To our pity, the draft considers reforming and correcting convicts as one of the goals of the prison personnel, which imposes on the personnel the function beyond its strength.
There is one aspect more concerning the topic under consideration. The draft of the Penal Code does not stipulate responsibility for such a crime as torture. In the conclusions and recommendations of the UNO Committee against torture of 30 April 1997, which are based on the 3 rdperiodical report of Ukraine on executing the UNO convention, it was clearly and distinctly suggested to define the notion of torture in the legislation and to stipulate responsibility for torture. On 4 November 1998 the European Committee on torture considered the report on the visit of Committee delegation to Ukraine, and soon we shall learn about the conclusions of European experts. I believe that the conditions of upkeep in some penitentiary establishments will be regarded as torture. Our supposition is based on conclusions of the Special reporter of the UNO Commission on human rights Nigel C. Rodley, who visited Russia on the invitation of the Ministry of Interior in order to inform him on the course of the court reform and measures taken to improve the status of convicts. Mr. Rodley made the following report (Document E/CN.4/1995/34/Add.1). In the Section ‘Conclusions and Recommendations’ Mr. Rodley wrote the following:
‘The conditions of upkeep of inhabitants of the Butyrskaya prison and in the preliminary prison ‘Matrosskaya Tishina’, especially in so-called common cells, are terrifying. It seems they are not unique in Russia in this respect. I would need the poetic talent of Dante and the artistic mastery of Bosch to depict the hellish conditions which I observed in the cells. It revolted my fealings of smell, touch, taste and vision. The conditions are cruel, inhumane and degrading; such standard of living is a torture. In the preliminary prison people are kept with the purpose of forcing them to confess. It is equivalent to torture.’
Alas, Ukrainian conditions do not differ much from Russian ones.
As we have pointed before, the Ukrainian legislation does not contain a definition of torture or cruel and degrading treatment. Something similar is listed in the articles for misuse of power followed by ‘violence, applying of weapons, or actions which torment and insult the victim’ (Article 166 of PC of Ukraine, Part 2), thus forcing to confess the suspect, ‘combined with application of violence or mockery and insulting the interrogated’ (Article 175 of PC of Ukraine, Part 2). These crimes, according to Article 7-1 of PC of Ukraine, are grave; they remain grave in the draft of the new Code. Nonetheless, the absence of clear and distinct definitions of torture and degrading treatment harasses the qualification of some actions of state officers. Owing to this, many criminal actions of state officers remain unpunished and, what is worse, are understood as normal.
It should be noted that the prison personnel is a hostage of the situation because they themselves cannot improve the conditions of upkeep of prisoners. Nonetheless, the existing objective reasons which cause inhumane conditions in penitentiary establishments (such reasons as insufficient financing due to the economic crisis) cannot be regarded as mitigating. The references to the public opinion as the basis for making penal legislation more cruel are incorrect. Cruelty breeds more cruelty and this escalation of cruelty is one of the reasons of the growth of crime. Changing the situation needs, first of all, the comprehension of the problem and the political will of the legislators. It is necessary to break the vicious circle.