• Research / Analysis of the human rights situation in Ukraine / Human rights in Ukraine 2011. Human rights organizations’ report
Human rights in Ukraine 2011. XXVI. PRISONERS’ RIGHTS
1. Some general data
This chapter addresses some issues, related to observance of the rights of the prisoners in the institutions under the auspices of State Penitentiary Service of Ukraine (hereinafter — SPSU) — pre-trial detention centers (hereinafter — PTDC) and correctional facilities (CF). Under the SPSU data, as of 01.12.2011, 154 111 individualts are held in the 184 penitentiary facilities; 38 156 of them are held in PTDC (5 079 — for pre-trail investigation, 18 250 — for trial investigation (before the sentence). 114 651 individuals serve their term in143 correctional facilities, including 6 855 individuals in 9 general regime facilities of minimum security level for men; 5 991 individuals in the 12 facilities for women; 35 790 — in 35 institutions of medium security level for the persons convicted for the first time; 44 211 — in 42 facilities of medium security level for the persons, convicted several times; 4 295 — in 9 facilities with maximum security level; 1 033 indviduals — in the 7 alleviated regime facilities with minimum security level; 4 932 persons — in 23 correctional centres; 2 889 individuals — in 6 medical institutions (besides, 2 706 individuals are kept in 16 medical institutions within the system of penitentiary facilities and PTDC); 1304 minors are held in 8 educational/correctional facilities. 12.6 thousand persons out of the the general number of convicts are convicted for the term more than 10 years; 1 764 individuals serve life term; 1 017 individuals stay under arrest.
Comparison of these figures with respective figures from the last year shows that the quantative data, concerning the institutions under SPSU auspices, remained almost unchanged. However, the public opinion and interest towards this area of public life increased substantially, due to the arrests of the former governmental officials and leaders, mass media attention to the issues of prisoners’ rights, a number of decisions, made by the European Court of HumanRights, with regard to the violations (including the systematic ones) of the Convention for the protection of human rights, committed by Ukraine.
Currently, a number of topical questions are on the agenda:
Is it expedient to hold in custody such high numbers of people?
Why the courts are abusing their right of detention, while the preventive measures are being chosen?
Why the prisoners, held in PTDC, and innocent until the court’s verdict comes into force, under the constitutional principal of presumption of innocence, are kept in worse conditions, than the inmates of priosons?
What should be done to change the situation for the better?
In this chapter we shall try to provide answers to these and other question.
2. Public control
As has been stressed in previous reports, the facilities under the auspices of SPSU remain closed for the society at large, while the system of prisons, as an institution of enforcement remains probably the only public structure unchanged from the Soviet times. The staff, therefore, is tempted to commit abuses and violations of the inmates’ rights, thus creating obstacles for the exercise of the rights and lawful aspirations of the latter. Let’s remind that as early as in 1987 Ukraine ratified the UN Convention against torture and other cruel, inhuman or humiliating treatment and punishment; on 16.01.1998 — it ratified the European Convention against torture and other Cruel, Inhuman or Degrading Treatment or Punishment, having thus become a party to these treaties. Besides, the Supreme Rada of Ukraine ratified the Facultative Protocol to the said UN Convention, while on 22.06.2006 the President of Ukraine signed the law on ratification of the Facultative Protocol.
Five years passed, the leadership of the country changed, but Ukraine never managed to meet its international obligations. On May 25, 2011 the UN Subcommittee on prevention of torture submitted its preliminary observations, based on its first visit to Ukraine (May 16–25, 2011) to the Government of Ukraine. The Subcommittee delegation was supported by the UN office in Ukraine. The Subcommittee mandate allows it to visit respective institutions and to give recommendations to the authorities with the goal of implementing efficient preventive mechanisms to eliminate torture and bad treatment of prisoners and people in custody.
At the national level, the National Preventive Mechanism (NPM) is supposed to be the body in charge of torture prevention. Ukraine has undertaken the obligation to set up the NPM within one year after the Facultative Protocol to the UN Convention on preventing torture comes in force. However, this body has not been set up in Ukraine till now.
Over the last years proposals on legal basis, underlying the NPM formation in Ukraine, were preparted on the Ministry of Justice and public initiatives. The draft laws stipulating Ukraine’s compliance with international requirements in the context of conditions and principles, set up by the Facultative Protocol to UN Convention on preventing torture, were elaborated. First of all, the setting up of the NPM should be defined by the law. Second, the NPM is created as an All-Ukrainian network of civlil society members with certain competences, specifically, with the mandate to visit any penitentiary facilities without restrictions or special permits. Third, the NPM should become an instrument of preventing illegal violence, promoting openness and transparency of the penitentiary system, as well as collaboration with authorities for joint resolution of the problems related to human rights violations. Fourth, this network shall be independent and not accountable to any of the governmental bodies. As to the term “place of detention”, it was supposed to cover the facilities, where a person is kept in custody or in a prison, or is placed into a public or private institution under arrest or custody; the person cannot leave the facility on his/her own free will, without permission from the court, administrative or other body.
However, the initiatives on the NPM setting up in accordance with the law were neglected both by the Parliament and by the President. Nevertheless, on the Ministry of Justice’s initiative once again, under Presidential Decree of September 27, 2011 Commission for preventing torture was set up “with the goal of facilitating Ukraine’s fulfilling of obligations undertaken in line with the Facultative Protocol to UN Convention against torture and other Cruel, Inhuman or Degrading Treatment or Punishment, in accordance with p. 28, part I art. 106 of the Constitution of Ukraine”. Under the Regulations for the Commission for preventing torture, it is a”standing, consultative and advisory body under the President of Ukraine…”
Although the newly-formed Commission has a lot of public organizations’ representatives as its members, it is hardly possible to expect that the Commission can substitute the NPM and ensure the Ukraine’s adherence to its obligations. “Decision on the NPM organizational structure is a prerogative of Ukrainian government, nevertheless, the NPM should be set up with due consideration of the respective provisions of the Facultative Protocol. The mandate, terms of reference and independence of the NPM operation must be strictly spelled out in the law and implemented in reality. The NPM should be provided with human and financial resources, needed for its efficient and multifacetous operation all over Ukraine” — stressed Mr. Evans, the Subcommittee Head and leader of the Subcommittee delegation.
3. Right to correspondence
Article 8 of the Convention reads: “Everyone has the right to respect for his private and family life, his home and his correspondence.” Under the article 31 of the Constitution of Ukraine “everyone is guaranteed the confidentiality of correspondence, telephone conversations, telegraph and other communications. Exceptions can be defined by the court only in cases, stipulated by the law, with the goal of preventing criminal activities or finding out the truth in the course of criminal investigation, if other means of obtaining information are unavailable”. Correspondence procedure for the persons in custody and convicts is regulated by provisions of the article 13 of the Law of Ukraine “On Prior Imprisonment”, article 113 of Criminal and Executive Code of Ukraine, Order of the State Department of Ukraine for enforcement of punishments No. 13 of 25.01.2006 “On Approving the Instruction concerning the perlustration of prisoners’ and PTDC inmates’ correspondence”, pp. 4.7. and 4.8. of the Departmental order No. 192 of 20.09.2000 “On Approving Normative and Legal Acts of the State Department of Ukraine for enforcement of punishments, concerning the treatment and behavior of the persons in custody and in PTDC” and p. 43 of the Departmental order No. 275 of 25.12.2003 “On Approving the Internal Regualtions for Penitentiary Facilities (with amendments).
Under the aforementioned legal acts, correspondence, sent by persons in custody or convicted of crimes, is to be perlustrated by the facilities’ administration, with the exception of correspondence, addressed to the Supreme Rada Ombudsman on Human Rights, European Court of Human Rights and other respective bodies of the international organizations, to which Ukraine is a member or participant, to plenipotentiary representatives of these organizations, to prosecutor and defence attorney in the case, who acts under article 44 of the Criminal Proceedings Code of Ukraine. Mail, sent by persons in custody or convicted of crimes, to the aforementioned entities, is not subject to perlustration and is to be sent out to a given address within 24 hours. We believe that the list of correspondents, to whom persons in custody or convicted of crimes can send non-perlustrated letters, should be broadened. It should include the court, particularlywhen actions or inaction of the facility’s administration is appealed, or when the legality of the imposed disciplinary measures is questioned. Appeals to the national and international human rights organizations should be sent out without perlustration either.
However, even within the framework of legislation in force, the quoted legal and normative acts cannot ensure the right of persons in custody or convicted of crimes to send mail without obstacles, especially, when actions or inaction of the administration in PTDC or correctional facilities, or legality of the imposed disciplinary measures is in question. The procedure for sending out correspondence is as follows: if an individual is in a PTDC or correctional facility cell, the mail is handed to an officer on duty of the said facility to be sent out. If an individual has been convicted and serves the term in either PTDC or in prison, the mail is put into the mail-box, which is to be checked on daily basis by facility administration. The date of sending and registration number (of the official letters) is entered into the respective mail-log. In both cases, however, whether the mails are given to an officer on duty or thrown into the mail-box, thre is virtually no tracking mechanism to establish either the fact of sending a letter or the date of its sending out by administration in compliance with the deadlines, let alone the fact that the mail was not perlustrated. That’s why the facility administration can arbitrarily decide which letters woiuld be perlustrated, when they should be sent out, and whether they are worth sending out at all. Besides, lack of due registration of the outgoing mail, i.e with date and registration number, under which it was accepted from the prisoner by the official staff of the facility, makes it impossible to track down the procedure of its sending out.
Therefore, the facilities under SPSU must have a mail-log for all the correspondence received from the persons in custody or convicted of crimes, to reflect the date and registration number of all the letters.
4. Right to medical assistance
Right to medical assistance is an inalienable right of any person, regardless of the place where the person is. It is particularlyimportant for the people in prisons, who are unable of exercising their right themselves. A prisoner is under the governmental control and cannot freely choose the place of stay, the manner of treatment in case of disease, a doctor or a medical institution to go to for examination and treatment. All these issues are defined by the state and it is the state’s responsibility to ensure the availability of the necessary required and adequate medical assistance in case of prisoner’s falling ill. Medical care in this case should be free of charge and the quality of medical services should be sufficient.
Individuals, held in PTDC before the court’s verdict comes into force, should be granted the same access to medical services as free people. We observe, however, that prisoners in PTDC cannot get medical care even in the scope, offered to the convicts, with respect to whom the court’s verdict has come in force. An abuse of the right to arrest is a persistent problem of Ukrainian courts. It was to these violations of the Convention that the European Court of Human Rights referred in its rulings on Kharchenko vs Ukraine, Davydov et al. vs Ukraine and others. The Court specifically stressed the abuse of the right to arrest by Ukrainian courts. Pre-trial detention can be used only as an extraordinary measure, — argues Thomas Hammerberg, the EC Commissioner for Human Rights. He stated his position at the meeting, organized by “Ukrainsky tyzhden’” magazine together with “Ye” bookshop.
“People in pre-trial detention are treated as convicts. This is wrong. We should apply to them the presumption of innocence principle. In Europe, for example, this measure is used rarely, and only in situations when an individual should be “at hand” for further investigation”, — said European Commissioner. He also stressed that Ukrainian penitentiary system should be more humane to give people chance to improve. Besides, the prisons should provide high quality medical care fot its inmates. “Depriving an individual of freedom, no one has the right to deprive him/her of health”, — argues Hammerberg.
Under part 2 of the article 84 of the Criminal Code of Ukraine “ an individual, who after committing a crime or after the verdict, was taken ill with another serious disease, which prevents him/her from serving the term, can be excused from the penalty or from serving the term. In passing respective decision the court takes into accournt the gravity of crime, nature of ailment, convict’s personality and other issues, pertaining to the case”. This provision, however, covers only the convicted persons, with respect to whom the verdict has come in force. As to the persons, detained preventively, this provision does not apply until the individual is found guilty or innocent by the court. The examination of criminal proceedings in the Ukrainian courts shows, however, that a person can be detained for many years without final court’s decision. There have been cases when a person was held in custody for up to 12 years, without a chance to be excused, if need be, from penalty on health grounds. The persons, who are not convicted, but held in custody, also have no access to specialized and adequate medical care in the specialized SPSU hospitals, due to the fact that no valid verdict was passed in their cases.
If appropriate medical care cannot be given in SPSU facility and a person has to be transferred from PTDC to a civil clinic, a new problem arises. Under the State Department of Ukraine for enforcement of punishments order No. 6 of 2000 persons, accused of crime and held in custody, sent for treatment or examination to a civil hospital, should wear handcuffs 24 hours a day to prevent their potential escape. (!). Handcuffs are used as a safety measure with regard to persons in custody, who behave inadequately, provoking conflict or by their actions pose a threat for the facility personnel. Handcuffs are used for certain short periods of time, till the prisoner calms down. Handcuffs fall under the category of special measures, used as safety measures “to stop physical resistance, violent actions, outrageous behavior, overcome counteractions against legal demands of administration, if other methods failed to ensure the execution of its duties”. It means that if a prisoner broke the disciplinary rules, he will be penalized by wearing handcuffs, e.g. for two hours, only if he poses a threat for the environment; in all other cases of disciplinary infringements alternative (non-specialized) methods of influence shall be used against him. If a person is transferred for treatment to a medical facility not subordinate to SPSU, he/she is penalized by wearing handcuffs for indefinite period of time. It means that specialized safety measures are used against sick people, who did not commit any disciplinary infringement.
68-years old professor Теmchenko was held in custody in Kryvy Rih PTDC for 20 months, despite the fact that his health condition could be described as criltical. Several medical experts gave their official evaluation of Temchenko’s health, and, based on their conclusions, the European Court in its ruling insisted on urgent measures to be taken, in compliance with regulation 39 of the European Court Regulations. It stated that Temchenko had to be immediately hospitalized in a specialized clinic for adequate professional medical care. Instead of being treated in a medical facility, Temchenko was held in PTDC only because the court hastened to satisfy the prosecutor’s office insistent request for preventive measure in the form of detention in custody. Neither prosecutor’s office nor the court paid any attention to the fact, that Temchenko was an elderly person, suffering from lethal diseases and posing no threat to the society, as he was accused of an attempted bribe-taking and dismissed from official position. When Temchenko’s condition deteriorated dramatically, he was taken to intensive care unit of the city hospital or in-patient clinic and held chained to a bed by handcuffs for 24 hours.
Anatoliy Georgiyevich Temchenko is a doctor of technical sciences, professor, member of Mining Sciences Academy, former Rector of Kryvy Rih Technical University. For his activity he was awarded the State Prize for Science and Technology and honorary title “Honored Public Education Specialist of Ukraine”, he has a number of awards and medals. All that did not help in saving him from inhuman treatment.
Thus, we are dealing with situation when, on the one hand, the European Court, in compliance with instruction 39 of the European Court Regualations recommended, that Ukraine takes urgent measures to immediately hospitalize the patient, while, on the other, the state neglected the request.
Even if Temchenko, hypothetically, would have been transferred to a specialized medical institution (in this case, the M. Strazhesko Cardiological Institute under AMS of Ukraine), it wouldn’t have resolved the problem.
Therefore, a person in need of medical assistance and appropriate conditions for treatment is subject to violence, manifested in the use of special measures — handcuffs — for an indefinite time period. The European Court ruling in the case “Okhrymenko vs Ukraine” unambiguously qualified putting handcuffs on sick people as prohibited behavior. “The Court believes that keeping the claimant handcuffed cannot be justified by safety considerations, and taking into account his health condition, it was inhuman and humiliating treatment. Hence, the article 3 of the Convention was violated”.
Here is another example. Kyiv resident Serhiy Karpylenko was detained in December 2009 for alleged group assault in the Botanical garden. Serhiy claimed that he had been beaten, while staying in the militia station. On 10.04.2010 Karpylenko was taken from PTDC No. 13 to the city emergency hospital, where a number of surgeries were performed on him, including the spleen removal and lungs’ surgeries. The surgeon commented that according to injuries’ condition, they were sustained two days prior to the patient arrival in the hospital. It is in line with Serhiy’s testimony that after the court hearing he was taken to Shevchenko raion Militia Department, where he had been beaten by five people. In the last months of his life Serhiy developed lungs’ tuberculosis, because he was kept in a cell with an inmate, who suffered from the open form of tuberculosis. Karpylenko died on November 7, 2011at the age of 27. Death certificate did not show the cause of death. Both Serhiy and his attorney several times submitted a motion to court, requesting the substitution of the custody with a written undertaking not to leave the city, on health reasons. However, despite the obvious fact that in this case custody was unnecessary and, moreover, irrelevant, as Karpylenko posed no threat to the society and needed immediate medical professional help. The prosecutor’s office and court remained unflinching. As a result, a human life was lost, the officials stayed outside of this and not a single one of them was charged as culpable of the pointless death of 27-year old man.
Access to medical care, including a free choice of a doctor, is one of the minimum standards, defined by the European Committee against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, of the persons detained in PTDC. The European Court position is clearly spelled out in a number of rulings, specifically, in the cases “Kucheruk vs Ukraine”, “Yakovenko vs Ukraine” and others: failure to provide timely and adequate medical care is considered inhuman and degrading treatment and violates the article 3 of the Convention. The European Convention is a part of national legislation of Ukraine. However, failure to provide medical care for the detainees is systematic and frequent violation in Ukraine. It is manifested mostly in high-profile cases within the focus of public attention, e.g. the case of ex-Minister of Interior Yuriy Lutsenko.
In our previous reports we always stressed the need to make medical institutions and specialized clinics independent from SPSU and subordinate to the Ministry of Health. Currently the personnel of these medical institutions is considered military staff, with military ranks, subordinate to SPSU and guided by the higher-in command orders’ and not by the Hippocratic Oath.
5. Tortures and cruel treatment
In our previous report we mentioned the European Court ruling in the case “Davydov et al. vs Ukraine” of June 1, 2010, in which the Court found Ukraine guilty of violating article 3 of the Convention on material and procedural merits. The matter in question concerned the beating up of the inmates of Zamkovy correctional facility No. 58 in Izyaslav, Khmelnitsky oblast’ on May 30, 2001 and January 28, 2002, by the commandoes of the Departmental special unit in the course of drills and searches in the facility.
On January14, 2007 almost all the inmates of Izyaslav facility No. 31 went on hunger strike (over 1200 people), protesting against arbitrary imposing of disciplinary measures, beatings and humiliations, committed by staff, bad food and inadequate medical care. On January 22 special unit commandoes, masked and ready for action, entered the facility. They beat severely over 40 inmates, brought to the headquarters for that purpose. Those were the prsioners who submitted prisoners’ demands to the commission. More details on the case can be found in the 2007 Report. Respective appeals to the European Court were recognized as acceptable, passed communication with government in 2011 and are awaiting their consideration on the merits.
The illegality of the unit, which is used to conduct searches in the penitentiary facilities and to cruelly penalize the inmates, was stressed by us many times in the annual reports of the NGOs, the latest of which covers the years 2009–2010. The Registration of the Departmental Order, under which the special unit operated, was invalidated by the Ministry of Justice. The unit, however, still exists in the form of regional joint units of quick response, made up of SPSU staff in a given region. The complaints on beatings, performed by these units, still arrive.
On May 6, 2011 several unidentified sources informed us, that the commandoes of such a unit, deployed at the Simferopol PTDC premises, have beaten the inmates. The scope of reprisals, numbers and names of the victims remained unknown while human rights activists have been trying to identify them, despite the difficulties and obstacles in obtaining and verifying this information. The information service of SPSU advised that the commandoes were acting within the framework of “Shield” operation. It is also possible that PTDC inmates, suffering from tubercolosis, made a video-clip, demonstrating the conditions of their imprisonment, which was later made public. The latest developments in Simferopol PTDC make one worry for the fate of the individuals who made the video. What happened to them after the horrendous conditions of sick inmates’ existence were made public? What is their present condition? Have any disciplinary measures been taken against them? And whether the special units are really used for inmates’ beatings?
On July 5, 2011 after the lunch the special unit commandoes organized another mass beating of the prisoners, this time in Dnipropetrovsk correctional facility No. 89. The facility personnel supported, and, probably, actively participated in the beating. We are talking about PSD major Valentyn Lehkobyk, in charge of the area, where prisoners surving life term are kept; area of hightened security, cell-like premises and disciplinary lock-up; PSD lieutenant
Andriy Khomenko, in charge of internal security of the facility, head of the department Olexandr Nasevich, PSD lieutenant-coronel Ihor Martynov, an acting superintendant of the facility. Severely beaten inmates included Yuriy Kaluhing, serving life term, Olexandr Dzesiv, Hrohory Ursul, Serhiy Tymoshenko. Anatoliy Pohorelov, Mykhaylo Dudnyk, Roman Bondarenko, Olexandr Isakov, Andriy Kostetsky, Vadym Kutlayev, Olexandr Ryzhykh, Vyacheslav Mushynsky, Olexandr Heraskin, Volodymyr Stoyan, Dmytro Romanenko. The Prosecutor’s Office refused to file a criminal case, despite obvious evidence of the crime and bodily injuries of 19 inmates, registered by expert medical analysis. It means that there are no instruments for efficient investigation at the national level.
Therefore, despite the European Court ruling in the case “Davydov et al. vs Ukraine”, which condemns the facts of mass beatings and bullying of people with the help of special unit soldiers, conclusions of the international experts of the UN Committee on preventing torture, the European Committee on preventing torture and other cruel, inhuman or humiliating treatment and punishment, world community, condemnation of such actions by Ukrainian public, SPSU continues to use the special units for mass beatings and bullying of prisoners.
6. Legislative amendments
On September 16, 2010 the President signed the Decree approving new Provisions on Pardon Procedure. This act, as opposed to the previous version, narrowed already limited chances of using the institution of pardon. The new provisions literally from the first paragraph contain new rules of granting pardon. Paragraph 2 defines the mechanisms for pardon, e.g. substituting life term for the imprisonment for the term not less than 20 years. This norm, introduced into provisons, reflects p. 2 of the article 87 of the Criminal Code of Ukraine on the minimum term, starting from which the convict, sentenced for life, acquires the right to submit petition for pardon. However, the new Provisions contain another clause, which narrows significantly the categories of eligible subjects and the very opportunity to submit a petition for pardon. Paragraph 6 of the Decree states that the petition for pardon of convicts, who failed to improve, or have served less than half of their sentence, as well as petitions of the persons, convicted for most hideous crimes, can be satisfied only under the circumstances warranting particularlyhumane treatment.
Attentive analysis of this paragraph shows that pardon without any restrictions can be granted only the following provisions are met:
— a person was convicted for the crimes of negligence (with the exception of negligent grave offense), or for the minor or medium offense;
— the convict has to show intention of improving;
— the convict should serve at least half of the sentence, defined by the courtl.
These criteria, therefore, seriously restrict the chances of release under pardon, as two of the aforementioned conditions should be present at once. First, the offenses should be minor or medium, and, second, the convict should have served at least half of the sentence.
It is noteworthy that the previous version of the Pardon Provisions was more loyal to the prisoners. Respectively, paragraph 6 mentioned two categories of the convicts who coul petition for pardon: those who have chosen to improve and have served a significant part of the sentence (probably, less than half, after all); and those who were sentenced for major offenses and have served half of the sentence. The first category seems less available for the prisoners, as a convict could have expected to be released on pardon only on the basis of particularlyhumane treatment. We believe that it is nonsense, as the aforementioned conditions testify that a prisoner has stopped being a threat to society, and, thus, it’s no longer expedient to have him/her in custody. Therefore, exclusion of the said norm from the Pardon Provisions can be regarded as positive.
As to the second category, the situation is different. Under the previous provisions, the chance of release on pardon was really limited for the persons, who posed serious threat for society. A person, convicted for very grave offense, and has served less than half of the sentence, had to remain imprisoned for a much longer period, than other convicts. Under article 12 of the Criminal Code of Ukraine, the crime is considered particularly grave, if it entails imprisonment for more than ten years, or life imprisonment. That is, restriction of the possibility of release on pardon seems logical and understandable.
Unfortunately, the new Provisions cannot be characterized as either logical or understandable. As stated above, the prisoner, petitioning for pardon, must be convicted only for medium or minor offense, and also have served half of the sentence, defined by the court. Under article12 of the Criminal Code of Ukraine, it means that a person has to be convicted for the term no longer than 5 years, and, respectively, serve at least 2.5 years. Establishing the convict’s intention of improving becomes an additional factor. By the way, this criterion is not spelled out in the acting legislation and is, therefore, highly arbitrary. However, it is the cases of this nature that are called exceptional and calling for particularly humane treatment by the legislator. It is obvious, though, that a person meeting all the criteria poses much lesser, if any, social threat. Hence it is not clear why the legislatior introduces such severe restrictions on the access to pardon institution for relatively dangerous convicts. Besides, having met similar criteria (crime of negligence, medium or minor offense, having served half of the sentence, intention of improvement) a prisoner gets a chance of release on parole. This measure is more operational, available and acceptable for the majority of the convicts, than petitioning for pardon. With this restriction the legislator deprived a significant number of prisoners of the chance to petition for pardon on the grounds of need for “particularly humane treatment”, as they could do a year ago.
By the way, increasing the “threshold” for the convicts’ pardon makes it even more improbable for the persons serving life term. These persons can submit petition for pardon after twenty five years of imprisonment, and, obviously, they do not fit into the category of those petititoners, whose petition can be considered without any additional requirements or evaluations. Some provisions of the new Decree, dealing with certain additional criteria when considering the possibility of granting pardon to a prisoner, also seem bizarre. In particular, the Provisions read that “sincere remorse, active participation in the crime discovery, behavior and attitude to work prior to imprisonment…” All these “criteria” are contrary to the doctrine of crminial and criminal/executive law, because they are to be taken into account by the court at the time of passing verdict, as such that can affect the scope of penalty, to be applied to the convict. Therefore the penalty defined by the court is in itself the “measure’ of a person’s repentance, assistance in the crime discovery etc. The court in its verdict takes all the circumstances into account and reflects them in the penalty measure chosen. Thus, taking into account the same factors, which were already considered by the court in its ruling, at the time of considering the issue on granting pardon, seems unreasonable, as it duplicates the court’s functions.
One of the principles, underlying criminal/executive law, is the possibility of reforming and resocializing of the prisoner. The idea of penalty is to change a person for the better. A lot of norms in the criminal/executive law are based on this principle. That’s why including such “criteria’ as repentance, assistance in crime resolving, behavior and moral character of a person prior to conviction into the Provisions manifest lack of trust towards Ukrainian model of criminal/executive system on the part of the state. If the system functions efficiently and lawfully a person can become more positive and socially welcome.
All these provisons, on the one hand, are of doctrinal nature, as they change the very concept of pardon. On the other hand, however, these doctrinal changes deplorably manifest that the access to pardon becomes more and more obstructed for the convict and that pardon institution is focused, first of all, at the persons, who pose insignificant threat to the society. A unique chance of getting out of the prison, i.e. legal pardon (with no restrictions to its use as its main charcteritics), in our country becomes completely unavailable for the majority of prisoners.
The Law of Ukraine No. 4025-VI of 15.11.2011 “On Introducing Changes to article155 of Criminal Proceedings Code of Ukraine on improving the procedure of taking a person in custody” stipulates that “Custody as preventive measure can be used in criminal cases which under the law entail a penalty in the form of imprisonment for a term more than 5 years, if a milder preventive measure cannot be used”. However, under the legislative amendments, taking into custody can be used also for medium or minor offenses. There are six exceptions. For example, if a person is suspected of committing two or more deliberate offenses, or the convict evades the justice or court hearing, or fails to comply with such a preventive measure as personal bail, or when the facts of the suspect’s, convict’s or defendant’s influence on the parties to the case are established.
7. Right to defence
Under article 63 of the Constitution of Ukraine the accused has a right to defence. According to p. 2 article 8 of the Criminal/Executive Code of Ukraine right to legal defence is one of the convicts’ rights. Article 110 of the Criminal/Executive Code of Ukraine reads that convicts are allowed to have a meeting with an attorney to get legal assistance. These meetings, on attorney’s request, can be confidential.
On October 28, 2011 an attorney for Ukrainian Helsinki Union on Human Rights Oleh Levitsky intended to see in private his client P., sentenced to term in prison, whose verdict has come into force. P. serves his term in the correctional facility No. 70 of maximum security level in Berdychev, Zhytomyr obalst’. Meeting had to take place within the framework of criminal process with the goal of discussing the defence strategy, and, specifically, appeals against the rulings of first instance and appellate courts. However, the facility administration denied the attorney a lawfull meeting with his client. The administrator gave technical resasons of the refusal: the facility, allegedly, does not have rooms designated for attorney-client meetings. O. Levitsky was offered to use a room for short-term visits and to talk to his client through the glass on the intercom system.
Thus the administration violated the convict’s right to legal assistance. Why? The question is not easy to answer. However, all the complaints coming from the inmates of this prison and addressed to public organizations, point at one and the same person — first deputy superintendant of the facility No. 70 Salyuk. His cruelty and sadistic inclinations have become proverbial. They say that Salyuk personally meets new contingents of the prisoners, beats and abuses them. We cannot either confirm or refute these allegations, as penitentiary institutions remain closed for the general public.
On November 1, 2011 Supreme Specialized Court of Ukraine for criminal and civil claims satisfied Mr. Levitsky’s motion on granting continuance in P.’s criminal case, as serious violations of the defendant’s right to defense occurred in the appeal process. Court hearing was rescheduled for November 15, 2011.
On November, 11, attorney O.Levitskt made another attempt to see his client P., serving his term in Berdychev facility No. 70. However, despite all the developments, descirbed above, attorney was denied confidential meeting with his client by the facility administration. Besides, the administrators suggested that Levitsky should pay 2 UAH for a short meeting with his client. For the sake of the client’s well-being attorney had to pay this amount.
It is expedient to:
1. Complete the process of making SPSU subordinate to the Ministry of Justice, in compliance with PARE Resolution No. 1466 (2005).
2. Carry out comprehensive analysis of the acting criminal and criminal/executive legislations and their application with regards to their compliance with international standards.
3. Amend the Concept of Reforming criminal/executive system harmonizing it with the Concept of Reforming the criminal justice system; involve broad renge of experts for discussions and amendments, introduce outside evaluation of the Concept and public discussion over it.
4. Nullify provisions of the Departmental normative and legal acts, which violate human rights.
5. On the basis of the new Concept of Reforming criminal/executive system devise a draft law on changes and amendments to the Criminal and Criminal/Executive Codes in compliance with the international standards, draft law on changes and amendments to the law “On Public Criminal/Executive Service”, draft law “On Disciplinary Status of Public Criminal/Executive Service of Ukraine”, draft resolutions of the Cabinet of Ministers of Ukraine “On the Order of Personnel Serving in the Public Criminal/Executive Service” and “On the Order of One-Time Monetary Compensation in case of injury or deathe of criminal/executive service staff and payment of material damages incurred while in active service”.
6. Review the duties and legal foundations of the special units’ operation within the system, avoid using them for searches and other activities inside the facilities.
7. Elaborate and implement mechanisms and procedures for efficient and quick response to the facts of human rights violations in the penitentiary system institutions, jointly with leading human rights organizations.
8. Devise constitutional proposal for establishing jurisdiction in court’s consideration of the prisoners’ complaints as to the actions or inactivity or the correctional facilities’ administrators.
9. Develop and implement mechanisms and procedures for the visits to the correctional facilities in compliance with the Facultative Protocol to UN Convention against torture.
10. Support introduction of other public ocntrol mechanisms in monitoring the operation of correctional facilities.
11. Implement an efficient system of complaints filing; put an end to the practice of penalizing prisoners, who complain against the actions of facilities’ administrations.
12. Compile an exhaustive list of disciplinary violations leading to disciplinary penal measures.
13. Study thoroughly all the cases of potential corruption among the system staff, made public the agency’s position concerning proved corruption cases.
14. Introduce research programs and projects, including the human rights organizations’ projects in regard to the prisoners’ rights and criminal/executive system as a whole.
15. Increase public awareness concerning the penitentiary system and institutions’ operation, the status and problems of the agency; set up press-service under each oblast’ Department.
16. Make medical institutions subordinate to the Ministry of Health.
17. Ensure observance of the right to defence with respect to inmates of prisons, including confidential meeting with an attorney.
 Prepared by Andriy Didenko, KhHRG coordinator.