war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

Does the public have any control in Ukraine?

Oleksandr Bukalov
The author considers how much real control the public have over what goes on in penal institutions. He points to obvious failings and clear reluctance on the part of the State Department for the Execution of Sentences to cooperate with civic society. He presents serious proposals and invites wide discussion.

An important element of civic society is the level of public control over the authorities, including the law enforcement agencies. It has become a banal truism to say that there is effectively no control over the law enforcement agencies in Ukraine. On the other hand there has been no review of the reasons for this which makes it difficult to take effective measures to improve the situation. As a result, it would seem logical to assert that to a large extent the fact that the public for various reasons do not control these agencies, human rights violations committed by these bodies continue in Ukraine: torture and violations are not punished.

Representatives of the authorities in their turn often maintain that there is public control and cite as evidence legislative provisions regulating such public control.

To analyze this situation more closely, we will consider public control over the penal system.

Article 25 of the Penal Code [Kryminalno-vykonavchy kodeks] empowers specially created supervisory commissions with such control. They are supposed to be half made up of representatives of civic organizations. Incidentally, it is specifically this fact that makes the Head of the State Department for the Execution of Sentences feel justified in asserting the existence of public control. There is also the Law “On democratic civil control over the Military organization and law enforcement agencies of the country” which is seldom mentioned, but which also, in Article 19, entitles members of the public in exercising such control to turn to the authorities, “via civic organizations which they belong to, deputies of the representative bodies of power or as individuals”.

One should not forget to add to all of this the Verkhovna Rada Authorized Representative on Human Rights [the Human Rights Ombudsperson] who monitors or more accurately, is supposed to monitor the law enforcement authorities, institutions and agencies of the penal system.

Yet for some reason human rights violations in the country continue, no progress is observed and the number of incidents in penal institutions has increased, with prisoners going on hunger strike, trying to slash their wrists, and so forth.

So where does the problem lie?

We will try to establish how representatives of NGOs view public control, and how such control is understood by the authorities. I would like to briefly share my perception of this.

Considering the first question, one can loosely divide nongovernmental organizations into two categories.

The first are organizations who don’t wish, and often are not in a position to concern themselves with issues of public control. They cooperate with penal institutions, carry out projects, training courses for prisoners and help where they can, while avoiding any hint of a controlling function. This is because they are convinced that as soon as they begin “controlling” observance of human rights in the institutions, the doors to the latter will close before them.

The second group of NGOs wishes to exercise such control and often does so.  They however are not allowed into the penal institutions to achieve this objective. Nor do they become members of the supervisory commissions and therefore they have no lawful opportunities for exercising such public control.  The refusal by the management of the system’s agencies or by the administration of penal institutions to allow them to carry out such monitoring is supposedly not an infringement of the law. In some cases where members of such organizations have nonetheless managed to become members of supervisory commissions, the management has still refused to allow them access to the institutions, as was the case in the Volyn region.  Clearly the fear of some civic organizations to become involved in monitoring, and the lack of such opportunities or levers of influence on the human rights situation in the institutions by others considerably narrows the real scope of public control.

So how do the authorities, staff and heads of the penal system view public control?

As a rule the first thing that they point to is the existence of a huge number of controlling organizations. They then add that there is control since the Penal Code states that there must be supervisory commissions. One sometimes even hears the question: since the prosecutor’s office already monitors the human rights situation in penal institutions, then why double up (or even “substitute” their work?  The overall conclusion of such positions is that there’s nothing much to worry about: there is control and it’s working.

It is worth defining what exactly “control” is.

Without aspiring to an exact and full definition, one can say that “control” is a means of checking whether the penal institutions and their personnel are working properly, whether they comply with international standards in this sphere, as well as whether they help eradicate violations uncovered and find ways and measures for preventing their recurrence.

“Public control” differs from other forms of control by being exercised by representatives of civic society, not by the authorities but rather by nongovernmental agencies. A further important aspect of such control is the fact that the public is informed of its outcome. Control becomes “public” not when a representative of the public finds out about certain violations, but when s/he makes this information available to the public.

And finally, an integral part of control which can make it effective, and not merely declarative, is the reaction of the authorities to violations uncovered, their elimination and prevention in the future.

I would also like to stress that control must envisage constructive partnership between the authorities and the public, aimed at identifying infringements and their causes, and at looking at ways to rectify the situation. It is not just about criticism but should be as constructive as possible. The punishment of those guilty of infringements should not be its main objective although such punishment must be inevitable.

Those who are familiar with the work of the European Committee for the Prevention of Torture [CPT] can say that I am simply repeating the principles of that Committee’s work, and this is quite true.

I would however stress one other specific feature of control which is seldom mentioned at all, especially by the nongovernmental organizations themselves. I am referring to the competence and professional skills of the “controllers”.

Any check carried out by the CPT is the work of specialists only. When the prosecutor’s office makes such a check, it also does this (or at least should) in a professional manner. Any control, including public, must ensure that those who are exercising the control have sufficient understanding of the structures which they are checking and the latter’s problems.

Bearing this in mind, if we turn our gaze to the supervisory commissions as controlling bodies, it is not difficult to see that in 99.9% of the cases there are no specialists with knowledge of how penal institutions work. They are, in the main, employees of district state administrations or bodies of local self-government.

The appointment of the chairperson of a supervisory commission, as a rule the deputy head of a local authority depends on the outcome of the latest local authority elections and the position is now subject to change. Almost all members of supervisory commissions are far removed from the field that they are now supposed to supervise and lack the appropriate knowledge. There have been ineffectual attempts to properly “train” members of such commissions, provide them with an awareness of the fundamentals of penal legislation. No attention was paid to the fact that, as a rule, these commission members have other professions and work in entirely different fields in which they earn their living. Nor that they can at any moment change their place of work which will not stop them being a professional in their field in another job, while a new person will join the commission.  Are people capable, giving such a mechanism for ending up on the supervisory commission, of not simply mechanically signing consent to applications from the penal administration to early conditional release, but also professionally supervising the work of penal institutions and checking their observance of human rights?   The situation is made still more piquant by the fact that almost all members of the commissions are representatives of the authorities, i.e. of the source of violations of human rights. It is also worth bearing in mind that a public official has to carry out this responsible work without remuneration. Can such control be considered public?

The answer is clearly no.

Who has a vested interest in retaining the present state of affairs, effectively an imitation of control by the public?  The answer is obviously those alone who are due to be “controlled”, that being the penal system and its management. It is not, therefore, surprising that not in one public address made by high-level officials of the Department over recent times have we heard even the slightest hint that the work (or very often, in fact, lack of any activity) of the supervisory commissions may be ineffective.

The quality of work of these commissions could be improved by representatives of civic organizations which, according to the Regulations on supervisory commissions should make up no less than half the composition of such commissions. In fact, however, the percentage scarcely reaches 5-7%, and quite often there is not one single representative. Yet the question arises – are representatives of NGOs at a sufficiently professional level to exercise such public control? One must acknowledge that there are few such organizations in Ukraine. Incidentally, it is precisely members of these few organizations that the management of the Department likes to keep out of the control process. If one assumes that the main motivation and priority for the management is not to observe human rights in penal institutions, but rather to keep their posts, then such actions are understandable.

The main conclusion must be that supervisory commissions in the mechanism for their creation, the principles of formation and selection of members to exercise public control are at present inadequate, and only imitate such control.  Such commissions can be quite good instruments of the post-penitentiary system in the country, providing help to those released from imprisonment. The actual makeup of the commissions suits such a profile , while controlling functions are to a large extent artificial, and therefore also secondary.

At the same time civic organizations which could be the main agents of public control often lack sufficient competence and professional skills for this. On the other hand, training their members, in contrast to training representatives of the authorities, is justified, since people usually work a lot longer in civic organizations than on a supervisory commission, and the nature of their activities are, as a rule, much closer to “public control”.

In the context of creation of national preventive mechanisms against torture in penal institutions, one can note that at the present time the responsibility for this work is placed with the Human Rights Ombudsperson. Yet it would be impossible for that office alone to encompass all the controlling activities over all institutions of the penal system.  Bearing in mind the style and level of information which the Human Rights Ombudsperson has provided society with over recent years, as well as her achievements in uncovering human rights violations, one cannot feel confident that this institution will be able to singly fulfil the tasks set down by the Optional Protocol to the UN Convention against Torture (OPCAT). Nor can we feel assured that the public will be informed sufficiently and in timely fashion about the human rights situation in penal institutions. While any public control without regular information to the public about its results can only very loosely be considered public.

The lack of public control at the present time is largely determined by Ukraine’s failure to adhere to international standards on monitoring by independent agencies of the Department, and its management sometimes simply obstructs initiatives put forward by civic organizations. The heads of the Department often refer to the opinion of experts of the Council of Europe  however avoid taking any action to carry out their recommendations. For example, Item 93.1 of the European Penitentiary Rules states:

93.1 The conditions of detention and the treatment of prisoners shall be monitored by an independent body or bodies whose findings shall be made public.

In Item 5.19 of their Report, the Council of Europe states:

“We would recommend:

-  creating as soon as resources permit an inspection body which would be coordinated from the central level, would be independent and have at its disposal regional groups containing experienced staff of the penitentiary system, representatives of other public organizations, including nongovernmental organizations;

-  removing, after the creation if an independent inspection body, the inspection functions of the prosecutor’s office;

-  carrying out a full inspection of each institution at least once a year;

-  providing a written report on each inspection to the relevant minister;

-  publishing reports on each inspection together with the minister’s response, with the exception of appendices containing confidential information;

-  that the heads of the inspection body once every two years provide parliament with a written report about the work carried out and facts established (see European Prison Rules No. 4 and Item 4 of the Explanatory report)»

In the 9 years that the Department has existed, no inspection body has been created.

Furthermore, OPCAT is not talking of one inspection mechanism, but of mechanisms in the plural, and therefore to count only on the activity of the Human Rights Ombudsperson would not be wise nor justified. Implementation of the functions set down in the Protocol by one institution alone would effectively mean a continuation of the policy of distancing human rights organizations from the work which is in fact one of their main functions. On the other hand, involving them in any way in this work within the framework of the Protocol will help increase their level of competence and professional skills, and also their level of responsibility for their work.

Given the need to create independent preventive mechanisms against torture,

Bearing in mind that inspection visits to any penal institution should be made at least once a year;

Considering public participation in the work of such a mechanism to be its duty;

The following is suggested as one, although by no means the only, variant for implementing the Provisions of the Protocol.

In order to carry out monitoring visits of penal institutions as part of OPCAT, 8-12 monitoring groups should be created in the country, each having from 5-8 members.  They should include representatives of the Ministry of Justice, the Ministry of Health, the most experienced members of supervisory commissions from among civic organizations and scientists. Each such group should make 4-5 visits throughout the year, each lasting a week to a week and a half.  During each visit, 3-5 penal institutions would be visited. During the subsequent month to six weeks a report would be prepared and made public.

What would be gained?

This arrangement would make it possible over the year to cover all penal institutions. The public would be involved in the national control mechanism via knowledgeable representatives of civic organizations, to a large extent thanks to their participation in the work of supervisory commission. That means that the commissions would become a kind of structure for preparing an expert resource for the preventive mechanisms. A considerable and important part of the work of these groups should be the publication each year and circulation of a collection of reports on such visits, with an analysis of the information and facts gathered by the monitoring groups during their visits and recommendations on how to improve the human rights situation in penal institutions.

It is considered that analogous work would be carried out by the Office of the Human Rights Ombudsperson and the supervisory commission, i.e. the mechanism would run in parallel to their work. the conclusions and results of those institutions and comparison of them would make it possible to evaluate the objectivity of the results received and prevented any biased approach from one of the institutions. It would basically help in significantly increasing the level of independence of the checking structures.

The professional level, competence and independence of members of the monitoring groups would be achieved through the fact that some of the members would gain experience working in the supervisory commissions. A rotation system should be devised for membership of these groups and also training and regular opportunities to share experience.

This approach to the organization of a preventive mechanism against torture would comply with the requirements of the European Penitentiary Rules and the recommendations of the Council of Europe experts.

I would invite discussion of this suggestion, objections and comments, preferably with arguments provided.

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