Reform of the criminal-executive system
To Volodymir Moysik
Head of the Committee of the Supreme Council of Ukraine
In charge of legislative provision of law-enforcing activities
The newspaper «Golos Ukrainy», No. 46 of 15 March 2005 published your article «Criminal-executive system of Ukraine: to reform or to repair?» You brought up very important questions of future existence of this system in Ukraine. Unfortunately, all power branches and the society give not enough attention to the activities of this important institution and to its problems. So, the very fact of your publication is, in our opinion, extremely positive.
We want to dwell on some your statements and to express our opinion about them.
1. Obligations of Ukraine to the Council of Europe.
In the publication you more than once recollect about the obligations of our country to the Council of Europe and insist that these obligations have been fulfilled. In particular, you write: «According to the obligations assumed by Ukraine at joining the Council of Europe in compliance with the Conclusion (Resolution) of its Parliamentary Assembly (No. 90 for 1995), it was established that until the end of 1998 the penitentiary system of Ukraine had to be taken away from under the authorities of the Ministry of Interior».
You also refer to the opinion of experts of the Council of Europe, which in 1996 studied our system and recommended to «create the penitentiary service as an autonomous social organization» in the framework of further development of penitentiary system.
You state that «for the fulfillment of recommendations of the experts of the Council of Europe on the creation of penitentiary service as an autonomous social organization… Department of penitentiaries was created. Thus, the main obligation to the Council of Europe on demilitarization of penitentiary system of Ukraine and taking its away from under the subordination of the force agency will be fulfilled by our country».
This statement corresponds to another your remark: «In my opinion, the demands of the Council of Europe come not to subordination of penitentiary system to the Ministry of Justice, but to the creation of penitentiary service as an autonomous social organization».
You also refer to the opinion of the participants of the «round table» held in the Supreme Council on 2 March 2004. «Almost all participants of the discussion accentuated the attention on the idea that the main purpose of the obligations to the Council of Europe concerning reforming of the penitentiary system, in particular, its demilitarization and taking away from under the subordination of the force agency, was fulfilled».
These statements are not, to put it mildly, accurate. And the document clearly reads: «responsibility for administration of penitentiary system… will be passed to the Ministry of Justice until the end of 1998». As you see, there is no mentioning about «autonomy» of the system. In contrast to recommendations of the experts, it is an obligation. So, if the fulfillment of recommendations of the experts, about which you recollect, is desired, but optional, the obligations must be fulfilled necessarily.
Of course, it is possible to assume that with time the Council of Europe agreed with the variant chosen by Ukraine: creation of an autonomous agency. However, it is not so. Maybe you do not know, but item 8 of PACE Resolution No. 1346 (2003) unambiguously reads: «The Assembly appeals to the power organs of Ukraine: … III. To complete the transfer of all penitentiary system under the subordination of the Ministry of Justice».
So, the position of the PACE concerning the fulfillment by our country of its obligations to the Council of Europe noticeably differs from your opinion quoted above, even if «almost all participants of the discussion of 2 March» think like you. This means that the obligation of Ukraine on the transfer of penitentiary service under subordination of the Ministry of Justice is still not fulfilled.
2. «Liquidation» of penitentiary system.
You depict the following alternative for out penitentiary system: «either to go along the way of real reforming, being guided by international experience and scientifically grounded national conception, or to imitate, for the umpteenth time, the radical reform by urgent liquidation of the existing state structures».
You write about liquidation in other places of your article too, stating that «on 12 February the Cabinet of Ministers included the State department of penitentiaries to the list of organs, which would be liquidated, with passing of its functions to the Ministry of Justice». It seems that you are even indignant: «is it possible to liquidate, with one stroke of the pen, a stable state structure, which includes 180 establishments, where 200 thousand incarcerated are kept?»
Firstly, tell us, please, where one can see this «scientifically grounded national conception of reforming of penitentiary system»? Does it exist?
Secondly, one can draw a conclusion from your words that the Cabinet of Ministers, liquidating the penitentiary system, plans to close all penitentiary establishments, to release all criminals and to make jobless the personnel of penitentiaries. Maybe everything is not so threatening and tragic? Maybe the question is much more trivial and the mater concerns not «liquidation» of the system, but its subordination of the Ministry of Justice? And in reality NOTHING is liquidated except the seven-year uncontrolled activities of administration of the penitentiary system? Maybe this absence of control is the main value you protect in your publication?
3. Observance of human rights.
Let us try to analyze your statements on the observance of human rights in penitentiary system. You write: «Heads of penitentiary system of our country insist that the seven-year functioning allowed to introduce new forms and methods of work with the incarcerated. These conclusions are also confirmed by the experts of the Council of Europe and the European committee against torture».
You also insist: «Effective cooperation of the criminal-executive system of Ukraine with the European states allows to reappraise the system of the right in the sphere of execution of punishment and observance of human rights, to realize implementation of the European norms and standards of the upkeep and treatment of prisoners».
You are sure that the penitentiary service has made a number of essential steps for further humanization of service of criminal sentence, consolidation of lawfulness, stabilization of the state in penitentiary establishments and guaranteeing of human rights and freedoms.
You do not doubt that «gradual reforming of the criminal-executive system has allowed to improve its work practically in all directions, but all these directions serve to one goal: guaranteeing of human rights and fundamental freedoms».
Wonderful words about human rights! Yet, it would be not bad to confirm this optimistic view with real facts. However, you do not adduce such facts. Besides, you, for some reasons, content yourself only with the opinions of administration of the system, but take no interest either in the opinion of scientists or the opinion of public organizations. And the level of conformity of your words with reality would be illustrated, best of all, with the following facts. New Criminal-Executive Code permits the prisoners one phone talk (15 minutes) per three months in the framework of guaranteeing of the right of the condemned for contacts with outer world and reservation of their social relations. Is this practical implementation of the European norms, mentioned by you? And there are scores of similar examples in the new Criminal-Executive Code.
The second fact. During 1998-2002 the European Committee against torture visited Ukraine four times. Maybe it happened because of conscientious work of our authorities from the Department for introduction of the «new forms and methods» of work with the incarcerated? The experts of the Committee against torture assessed the «essential steps for… stabilization of the state in penitentiary establishments and guaranteeing of human rights and freedoms», for instance in item 59 of the Report of the Committee after the visit of 2002:
«The upkeep conditions, during our visit to the penitentiaries, were threatening, like before. This is confirmed, in particular, with the observations made in the Simferopol investigatory isolation ward. In the places, where the progress is observed, it is insignificant and uncertain. The visit confirms that the problem of systematic overcrowdness, which had to be solved by the Ukrainian power long ago, still exists not only in investigatory isolation wards, but also in penitentiary establishments».
It is noteworthy that this year the committee will visit Ukraine for the fifth time. This is another expressive evidence of «guaranteeing of human rights and freedoms» in our penitentiary system.
I want to add that the real attitude of the Department as «an autonomous structure» to the problems of the observance of human rights is also confirmed by the fact, which is not known widely: in December 2003, according to the results of the round table conducted by administration of the Department and public organizations, some amendments were introduced into the joint Resolution. These amendments concerned the attraction of attention of workers of the system to the solution of the problems of human rights (see the bulletin «АСПЕКТ» [«Aspekt»], No. 1-2004). The final version of the Resolution was completed by the Department, and all amendments about human rights were deleted. As a result, they got the previous text, prepared by the Department itself, in which human rights were not mentioned. Well, it is quite strange «practical application» of declarations on the observance of human rights by the Department of penitentiaries as an autonomous organization.
The conclusion: today the observance of European norms on human rights in penitentiary establishments is rather promises and good intentions than the real state of affairs. And the autonomy of the Department is the factor that rather brakes introduction of the European norms than promotes this process.
4. Public control of the system.
You state: «Today the intensive process of formation of civil society takes place, the civil society, which would be able to realize the public control over any state agency».
And later: «The provision «On observation commissions» has been adopted for execution of Article 25 of the Code, which envisages the principle of public control over the observance of the rights of prisoners serving criminal sentence».
The quoted statements are quite correct. You do not affirm that the public control exists in our country, since, the «ability to realize the control» and the adoption of the Provision is not the control yet. On the one side, you write about public control, and on the other time – you do not contend that such control exists.
In reality, such control is absent today. There are two reasons, which are elucidated in details in publications in our bulletin «Aspect» (No. 3, 2004 and No. 1, 2005). In short, the first reason: the observation commissions consist not of representatives of public organizations, as it is stipulated by the Provision, but of the officials. For example, in the Donetsk region we examined 11 commissions, and in 8 of them there was not a single representative of public organizations, and 2 more included one representative each. The Donetsk region observation commission consists of 15 persons, among them: 9 heads of departments of the regional state administration and 5 representatives of the commissions of the regional council. We proposed to include a representative of at least one public organization to the commission, but the regional state administration refused.
And another essential reason of absence of the public control. The Provision on observation commissions contains the list of tasks of such commissions, but there is NOT A SINGLE item stipulating the control over the rights of the condemned. It is paradoxically, but there are no norms in Ukraine now, which directly stipulate the control over the observance of human rights. By the way, the draft of this Provision on observation commissions was prepared by the Department. So, seven years is quite enough to understand that the «autonomy of the Department» and public control of its establishments are incompatible things.
There is another interesting statement. Speaking about the procedure of passing the Department to the Ministry of Justice, you write: «It is unpleasant that the intentions of the committee (headed by you) to discuss this question at the sitting of a round table, with attraction of the wide circle of peoples deputies of Ukraine, heads of corresponding ministries and agencies, scientists and representatives of international organizations, was ignored».
I reckon that the fact that you, for some reasons, do not mention Ukrainian public organizations in this list, is not less strange and unpleasant. Do you really think that public organizations do not deserve the participation in such discussion? In such a manner you confirm that, in fact, public organizations in Ukraine are not regarded as a subject concerned with the solution of problems of the system. You invited none of 20 more or less competent public organizations to the conference of 2 March.
In this context I want to quote the recommendations of the experts of the Council of Europe, respected by you, who wrote in item 5.19 of their Report.
- to create, as soon as the resources will allow, the inspection organ, which would be coordinated on the central level, would be independent and would have the regional groups including the experienced workers of penitentiary system, representatives of other public organizations, including non-governmental ones;
- To cancel, after the creation of independent inspection organ, the inspection functions of prosecutors office;
- To realize the total inspection of every penitentiary at least one time per year;
- To present written report on every inspection to the corresponding minister;
- To publish reports on every inspection together with ministers response, except the parts that contain confidential information;
- Head of the inspection organ must, one time per two years, present to the parliament the written report on the conducted work and the disclosed facts (see Europen Prason Rules, rule 4 and item 4 of the explanatory report).
Today, seven years after the creation of the Department, no inspection organ has been created, moreover, the former administration of the Department is not interested at all in real creation of such organ. The prosecutors office remains almost the only organ, which regularly inspects penitentiaries, but it is impossible to obtain the information about the results of these inspections. For example, the Donetsk prosecutors office always refuses to render us such information.
5. Legislative achievements of the Department.
Speaking about the achievements of the Department, you mention that «the new Criminal-Executive Code was adopted, as well as the Law «On social adaptation of the persons, who served sentence in the form of restriction or deprivation of liberty for certain term».»
Indeed, the CEC has been adopted, but now this Code is already obsolete and demands many changes and amendments. As to the Law, it, alas, does not function. I would be extremely grateful, if you would adduce the information, how many people, who were released, for example, in the Donetsk region during 2004, got flats, as it is stipulated by the Law. Or the information about the number of persons, who turned to the observation commission and got the aid according to this Law. Unfortunately, today this Law is an empty declaration.
You mention the creation of the draft of the Law «On state criminal-executive service of Ukraine» as one of the achievements of the Department. Do you really regard as achievement the fact that in seven years this law draft was adopted only in the first reading? And during all this period the workers of the Department know nothing about their own status and about the support they can get from the state? At the same time, departmental hospitals of the Ministry of Interior refuse to render free of charge services to the workers of the system, since they are «outsiders», and they almost do not have «their own» hospitals. So, the workers of penitentiaries must pay for medical treatment in contrast to, for instance, militiamen. The seven-year uncertainty of the status of a worker of penitentiary system is also an «achievement» of the Department as an autonomous structure.
6. Number of incarcerated.
You affirm that the «annual initiation by the Department of adoption of the laws on amnesties, as well as realization of the norms of Criminal Code on application of new forms of punishment, allowed to decrease noticeably the number of incarcerated in penitentiaries».
In actual fact, the number of incarcerated was less before the creation of the Department. For example, in 1994 this number was 138970 persons, in 1996 – 172163. AFTER the creation of the Department the number of incarcerated quickly increased and on 1 January 1999 it was 206191 persons, one year later – 218083, and on 1 January 2001 – 222254. As to the last years, the decrease of the number of incarcerated during three years from 192293 (on 1 January 2002) to 188465 (1 January 2005), that is for 3828 persons or 2%, may not be regarded as «noticeable». At the same time the number of prisoners in 2005 exceeds the level of 1996 for 10%. CONCLUSION: the autonomy of the system has not become a factor that affects the number of incarcerated.
7. Something about recommendations of the experts of the Council of Europe.
There is a very interesting phrase in your article: «Department, by its state-legal meaning, is a law-enforcing organ, which has the right to conduct the ODA».
In other cases you regarded as very competent the opinion of the Council of Europe experts. Yet, in the Report, prepared by them and quoted by you, there is such remark of the experts (item 5.13 of the Report): «The Ukrainian penitentiary service has always had close operative relations with army and militia, so it is frequently (but not correctly) mentioned as one of law-enforcing organs». It is noteworthy that the independent status of the Department conserved such «incorrect» attitude to the system. Moreover, passing to the Ministry of Justice is directed, in particular, at the correction of this «mistake». However, you reckon, for some reasons, that the correction of this «mistake» is inexpedient. Why?
First of all, it should be noted that the stated comments are not aimed at protection of one point of view. Today the problem of passing of the Department of penitentiaries under the subordination of the Ministry of Justice is very actual and urgent, it demands open, public and professional discussion, in which not specially selected participants with the beforehand known position should take part, but the wide circle of professionals. And the participants of this discussion must use real, but not falsified arguments, authentic and complete data, but not the data confirming only one point of view.
In this letter we made the attempt to prove that the arguments, adduced by you in the considered article, are, unfortunately, beneath all criticism. The correctness and completeness of the selection of experts, who took part in the round table on 2 March, is rather doubtful. If you believe that there exist arguments confirming that the department must remain the independent structure, then it should be reasonable to expound these arguments. And if there are arguments for passing the Department under the subordination of the Ministry of Justice, these arguments should be considered impartially. Besides, one should not forget that Ukraine has chosen the European way of development.
Head of the association of penitentiaries of Ukraine,
Head of the council of public human rights protecting organization «Donetsk Memorial»