28. RIGHTS OF PRISONERS
1. General overview
In this section we will address both the flaws and the positive changes registered in the institutions under the State Penitentiary Service of Ukraine (hereinafter –SPSU) this year with respect to human rights. As of November 1, 2012, 151 137 inmates were held in 181 institutions under the State Penitentiary Service of Ukraine. This number included 33 216 detainees in 32 pretrial detention centers, 3643 of those for pretrial investigation; 16 359 for the term of court investigation; 116 643 inmates held in 141 correctional facilities, including 9 institutions of the minimum security level with 6 744 male inmates; 13 female facilities holding 6 189 inmates; in 35 institutions of the medium security level for the first-time convicts - 37 066 inmates; in 41 institutions of the medium security level for repeatedly convicted - 43 692 inmates; in 9 institutions of the maximum security level - 4 354 inmates; in 5 institutions of the minimum security level with alleviated conditions for male convicts - 963 inmates, in 23 correctional centers - 5 397 inmates; in 6 specialized medical facilities - 3 137 inmates; in medical institutions under correctional centers and pretrial detention centers - 2 645 inmates; in juvenile correctional centers - 1 278 inmates. 13.2 thousand of inmates are convicted for the term over 10 years; 1 802 inmates serve life term, 819 detainees are held under arrest.
As compared with the last year, the number of prisoners decreased by 2974 due to the reduced number of SPSU institutions from 184 to 181. Meanwhile the over-population of these institutions and the conditions of stay basically remained unchanged
What positive changes and what possible challenges can be expected with regards to the rights of prisoners kept in SPSU institutions after the CPC is passed?
What is the forecast for the improvements in public control of the SPSU institutions following the implementation of the Ukrainian national mechanism for preventing torture, and what will change in the operation of the observers’ commissions?
What are the systemic violations of the human rights which we observe for years within the SPSU system, and what recommendations are disregarded by the commanding officers of this system?
How can the situation be improved?
We shall try to answer these and some other questions in this section.
2. The legislative amendments
The Presidential Decree №631/2012 of November 8, 2012 approved the new State Policy Concept for the reforming of the State Penitentiary Service of Ukraine. This normative document in fact replaces the former Decree of the President of Ukraine “On the State Policy Concept for the reforming of the State Penitentiary Service of Ukraine” № 401/2008 of April 25, 2008.
The analysis of the document, however, does not show any progress in comparison with the former version. Some provisions just duplicate the earlier ones, while the others do not contain any substantial differences. Certain positive features of the former Decree were not taken into account in the new one.
Thus, the norm requiring the development of the new models for the penitentiary institutions for women and juvenile delinquents was eliminated, despite the fact that it has never been implemented in the penitentiary practices.
The new Concept clearly defines current problems, but lacks the definition of specific tasks for their resolving.
The Concept mentions that although the inconsistency of prisoners’ and persons’ in custody keeping with the national law and European standards has been stressed many a time in the Reports of the European Committee for prevention of torture and inhuman or degrading treatment or punishment (hereinafter – the Committee), the majority of its recommendations are not taken into account, and the Concept does not even mention the need to comply with them.
The latest report was published by the Committee in late 2011
The same applies to the European Court on Human Rights’ Decisions, which establish the violation of the convicts’ rights, but are disregarded by the authorities. These decisions are numerous, due to the fact that the Court, in its rulings, refers to the standards, developed by the Committee. E.g. the decision on the case “Trosin vs. Ukraine”, in which the Court condemned Ukrainian practice of jail visits, namely, the norm under which the number of family visits is automatically limited (i.e. only certain number of visits is allowed to a prisoner for a given time period), without any consideration of individual risks.
One of the most negative features of the Concepts is the idea of self-sufficient operation of the penitentiary institutions to reduce the burden on the state budget. The practices of other countries, as well as long-term Ukrainian experience shows that the prioritization of the economic goals as opposed to rehabilitative ones in the prisoners’ labor cannot be justified and in the end of the day does not meet neither economical nor rehabilitative goals. Modern scholars point out that the idea of self-sufficiency collapsed in the soviet times and will be surely doomed in the future.
Besides, the Concept contains provisions which, even from the point of view of criminal-penal law, are unclear and too general. E.g. modernization of the production facilities within penitentiary institutions and the improvement of vocational training for the prisoners supposedly will be achieved by the improvement of operational principles of the said facilities under penitentiary institutions.
The Concept stipulates compulsory social/pedagogical support and social and psychological aid for the convicts and persons in custody. Keeping in mind that the persons in custody are not considered guilty of a felony prior to the court’s verdict, it is unclear, how a compulsory social/pedagogical support shall be enforced with regards to these persons.
There are still “blank spots” in the SPSU regulations on the order of delivering and serving the sentence. The experts insist that the administration of the penitentiary institutions should not use technical means of control and supervision unless a special normative-legal act(s) is/are adopted. This conclusion is based on the following reasoning
Nevertheless, the courts justify the illegal SPSU practice. On October 30, the Circuit Court of Kyiv passed a decision refusing to satisfy in the full scope the claim of Yu.Tymoshenko against the SPSU actions. Specifically, the court sustained that the system of video-observation installed by the SPSU in the premises where the convicts are kept, is legal
The agency many a time stated that the law in force does not allow phone calls for the prisoners being treated in medical institutions under the Ministry of Health of Ukraine,
The Decree of the Ministry of Justice of Ukraine, Ministry of Social Policy of Ukraine, Ministry of Education and Science, Young Adults and Sports of Ukraine, Ministry of Health of Ukraine, Ministry of Interior of Ukraine № 478/5 / 180 / 375 / 212 / 258 of 28.03.2012 established the Order for cooperation between the penitentiary institutions and subjects of social care in the preparation of the persons serving their terms, to discharge. The new Decree invalidated three normative documents which earlier regulated specific issues of social adaptation for the persons discharged from the penitentiary institutions.
The new Order looks like a compilation of the certain norms of the three former orders without introducing any substantial changes; it testifies rather to the authorities’ mimicry than their real desire to introduce changes. Moreover, many norms which were in force before, are completely ignored by this Decree, and, consequently, have become invalid, debilitating further an imperfect system of the social adjustment for the ex-convicts. The few novelties, introduced by the Decree, in our opinion, have serious faults.
Thus, Section 2 of the Order addressing collaboration between the centers of social services for families, children and young adults and penitentiary institutions in providing social services for the children and young adults discharged from the penitentiary institutions was eliminated. The Section defined the possible ways of co-operation, specifically, exchange of information on preparing children and young adults to discharge from prison; helping in social rehabilitation of the children and young adults; involvement of non-governmental organizations of children and young adults, companies, institutions, other organizations irrespective of form of property, charity groups, volunteers and other individuals in the social mentoring.
Altogether a lot of positive norms from the earlier Decrees have been canceled. This fact should serve as a warning against precipitated law-making in the future.
On February, 08, 2012 the Ministry of Justice of Ukraine adopted a №222/5 “On approving the Instruction on the order of assignment, placement and transfers of the convicts between the penitentiary institutions (hereinafter – the Instruction)”, which annulled the former Order of the State Department of Ukraine on penitentiary system № 261 of 16.12.2003 “On approving the Instruction on the order of assignment, placement and transfers of the convicts between the penitentiary institutions”. The new document contains only a few unsubstantial changes in the regulations of convicts’ assignment to penitentiary institutions and looks like a mockery of the law-making activity undertaken by the Ministry of Justice of Ukraine, which just changed the title pages of the numerous former SPSU normative documents without changing their contents.
Similarly, the Decree of the State Department of Ukraine on penitentiary system №162 of 10.08.2000 “Instruction on the order of providing personal belongings for the convicts serving their sentence in the penitentiary institutions and pretrial detention centers” was replaced by the Decree of the the Ministry of Justice of Ukraine № 280/5 of 20.02.2012 “On approving the Order for providing personal belongings and adherence to norms of ownership for the convicts serving their sentence in the penitentiary institutions and pretrial detention centers” . The Ministry of Justice introduced no substantial changes into the norms for personal belongings, but retained the outlandish norms concerning personal belongings of the convicts. Thus, under the Decree, the female convicts are entitled to two pairs of cotton underpants in two years. The same norm applies to male convicts. These latter are entitled to one shirt and 4 pairs of socks in two years.
An attempt to fake the law-making activity can be detected in the Ministry’s of Justice new Order for submitting pardon appeals to the Administrtion of the President of Ukraine and for implementing President’s of Ukraine decrees granting pardon (№1439/5, of 28.09.2012). According to the Ministry’s of Justice press-service, this Order among other things contains more humane provisions with regards to prisoners serving life sentence
Habeas corpus still remains a problem for the convicts who need to participate in the hearings on civil jurisdiction. Addressing this issue, the Constitutional Court of Ukraine passed a ruling on 12.04.2012 in the case on constitutional appeal of the citizen A.Troyan concerning official interpretation of Article 24 of the Constitution of Ukraine. (The case re: equality of parties to the trial).
The quality of law-making activity in the criminal justice area with respect to the international commitments of Ukraine also remains poor. E.g. Ukraine failed to send representatives to the Expert Group Meeting on the Standard Minimum Rules for the Treatment of Prisoners (Vienna, 31.01.2012-02.02.2012), attended by 143 persons from 52 countries-UN members. Besides, 28 UN members, Ukraine included, responded to the call for sharing best practices in penitentiary system. However, Ukrainian best practices were not taken into consideration in developing Preliminary note (working document), as opposed to best practices of other countries.
3. Systemic violations of human rights
In this section we will focus on systemic violations of human rights, which remain unchanged for many years, while SPSU does not take any steps to improve the situation.
1) Right to protection.
The Supreme Rada Ombudsman V.Lutkovska was approached by Iryna Lutsenko, the spouse of ex-Minister of Interior Yu.Lutsenko, serving his sentence in Mena correctional facility №91. In her open letter Iryna Lutsenko complained that the facility administration categorically refuses to grant the prisoner the opportunity to see his attorney. She stressed that after Yu.Lutsenko’s transfer to the facility №91 he did not have a single confidential meeting with either his lawyer or his public attorney within the framework of criminal investigation. All the meetings took place in the common area intended for short visits, without any heed of confidentiality right. A whole range of normative documents regulating the SPSU operation guarantees the convict’s right to a confidential meeting with his attorney. Lamentably these norms are ignored by the administration of the penitentiary institutions. We tried to draw attention to this fact many a time, but the violation of this right can be classified as systemic.
2) Tortures and cruel treatment
а) The “famous” Dnipropetrovsk correctional facility No89 (hereinafter – DCF-89) ranks first among Ukrainian penitentiary institutions as to the number of violations of human rights reported over the last two years. It is in this facility that mass beatings of the inmates by the SPSU special unit occurred, while the state officials remained inert. In March of this year the inmates with the open form of TB announced hunger strike. They published a video with their commentaries demonstrating horrible conditions in which they are kept. The events in DCF-89 are described in detail in the section addressing fight against torture.
b) An outrageous beating of an inmate in the pretrial detention center №13 in Kyiv. That’s how the UNHCR press-release “Another mandate refugee of UNHCR, protected by the European Court on Human Rights which forbade Ukraine from deporting him to the country of origin, was beaten severely in the pretrial detention center №13 in Kyiv. Now he is in the hospital, in custody, manacled to his bed. His serious injuries caused a long-term loss of consciousness. UNHCR hopes that the refugee will be treated humanely and not sent back to the prison without a thorough medical examination for possible internal injuries. UNHCR appealed to the SPSU and law-enforcement bodies to instigate immediate transparent proceeding for the investigation of this hideous crime and sue the culprits, who failed to ensure the protection of a person in custody in the state penitentiary institution.”
By pure coincidence the Ukrainian Helsinki Union on Human Rights’ attorney O.Levitsky, who defended the refugee, almost found himself in the epicenter of the incident. To be more exact, he happened to arrive at the crime scene when his client was already choking in the pool of blood. Apparently his arrival prevented the criminals from accomplishing their intention. “On August 03, 2012 in the pretrial detention center №13 in Kyiv my defendant A.U.H. was savagely beaten. As a result he suffered serious body injuries, threatening to his life. It is possible that the perpetrators intended to cause my defendant’s death”. This is an excerpt from the attorney’s Levitsky’s statement submitted to the Prosecutor’s office of Kyiv with respect to this outrageous and brazen crime, committed in the state institution, i.e. a pretrial detention center. The beating happened not in a cell (where it is impossible to reconstruct the crime, because the victim would negate the fact of beating explaining that he e.g. “fell from the bed”), but in a public place, with other people present. The attorney’s statement leads one to a conclusion: the Lukianivka incident is unprecedented, and the attorney might have become an active participant in it, had he not been delayed seeking permission (unnecessary, in his opinion) for a visit. Taking into consideration the nature and severity of body injuries, one could conclude that several persons took part in the premeditated beating. The event occurred in the pretrial detention center under SPSU jurisdiction. It means that only a convict, detained there as preventive punishment measure, staff and operatives from the Ministry of Interior or Security Service, attorneys (family members), defending their clients in the course of investigation, can enter the premises. In other words, the number of people authorized to visit, or detained in the center, is limited. Personal safety in Ukraine is not guaranteed so far. No one can feel safe anywhere. The attorneys need protection as well as their clients.
c) We stressed many a time that the use of armed masked commandos to conduct searches in SPSU institutions is unacceptable, irrespective of their affiliation – a unit, a special subdivision etc. There is no need to employ specialized SPSU units for the searches in the pretrial detention centers and in correctional facilities. They only intimidate the inmates in violation of their human rights. The European Court on Human Rights classifies these practices as violation of Article 3 of the Convention on Protection of Human Rights and Fundamental Freedoms (torture, cruel treatment). The case “Davydov et al. vs Ukraine” provides a most vivid example in this context (we dwelt on this case in detail in our previous report). Nevertheless, this practice continues, and in 2012 resonant events in Kopytchyntsy correctional facility № 112 occurred (see section on fight against torture for more detail).
d) On March17, information about beatings of inmates and killing of Taras Voytsekhovsky in Bucha correctional facility was published in Ukrainian on-line media. “As became known, on March 16, 2012 a man was killed in Bucha correctional facility № 85 in Kyiv oblast’. A convict was killed in BCF; another inmate is in the hospital. They were beaten by the facility staff.” –informed the source.” The deceased Taras Voytsekhovsky was born in 1985. Another victim – Serhiy Telima, born in 1987, ended up in the hospital as a result of the beating”. Another source informed that the facility administration tries to hide the fact of beating. The officials claim that, instead of a quarrel between intoxicated convicts and their guards an ethylene poisoning of the convicts actually occurred. The journalist of Kharkiv human rights’ protection group informational bulletin “Human Rights” A.Didenko together with the lawyer O.Sapozhnikova conducted their own investigation and, having talked with a victim and witnesses, found out the following: “The deputy warden of the CF detained Voytsekhovsky and Telima around 6:00 pm. They were put into a cage-like room and the facility guards started beating them. The sergeants known among convicts as “Styopa Voropay, Karate-man and Leonidovich”, as well as the first deputy of the warden Lohovitsky participated in the beating. Serhiy was kicked in the stomach (liver area) and collapsed. They resuscitated him pouring water on him. They first beat Taras in the “cage”, then dragged him “like a bag”, unconscious into the disciplinary cell, located about 60 m from the main building. Serhiy came to his senses in the hospital unit, where he is currently staying, complaining of liver ache, nausea and vomiting, while Taras did not survive tortures and died. The evidence of numerous injuries was found on his body.” The witnesses under condition of their anonymity testified that they heard the screams and sounds of beating taking place inside the premises. The SPSU, nevertheless, divulged another version of the incident. The prisoners, allegedly, consumed alcoholic beverages of bad quality and suffered injuries as a result of numerous fallings. The administration also put psychological pressure on Taras’ mother. As a result the body was cremated immediately. However, while the body was in the morgue, the journalists managed to take pictures of Taras Voytsekhovsky’s disfigured face. The photos were made public and attached to the petition to the Prosecutor’s office requesting criminal investigation. The Prosecutor’s office refused to instigate proceeding due to the lack of corpus delicti in the staff’s action. Nota bene - in its Decision on the case “Kaverzin vs. Ukraine” the European Court pointed out that the lack of efficient investigation of the torture by the Prosecutor’s office in Ukraine is a systemic violation of Article 3 of the Convention for Protection of Human Rights and Fundamental Freedoms.
e) The Report of the European Committee under the Council of Europe for prevention of torture and inhuman or degrading treatment or punishment was also made public. It was based on the results of monitoring visits to Kyiv and Kharkiv pretrial detention centers between November 29 and December 6, 2011. The authors of the document stated that numerous violations of the prisoners’ rights in pretrial detention centers have been revealed. “They are beaten, sometimes with the clubs, while in custody and during interrogations. Sometimes they are subjected to treatment tantamount to torture – electrical shock, suffocation with the plastic bags or gas masks”. The Report reveals that prisoners are threatened with arms, and some of them come from interrogations with injuries. The monitors also criticized the conditions in which the prisoners are kept. As an example, they described a cell in Kharkiv pretrial detention center, where 44 inmates are kept, while there is enough room for 28 only. As a result, the inmates have to take turns to sleep. “Therefore, one can arrive to the conclusion that a person kept in pretrial detention center is subject to the risk of cruel treatment” summed up the monitors. In 2012 all the observations made in this report still applied.
f) Nevertheless, in some cases of human rights’ violations the Prosecutor’s office responds differently. E.g. on the fact of the use of violence against the prisoners in the CF № 77, city of Berdyansk, Zaporizhzhya oblast’, the criminal proceedings were instigated. On February 17 several prisoners of the correctional facility № 77 of the minimum security level refused to take their meals during breakfast. On February 19 press-service of the SPSU for Zaporizhzhya oblast’ informed that prisoners protested mainly against low temperature inside the premises, conditions of work and meals, and that, allegedly, after things have been explained to the inmates they agreed to eat by the evening of February 18. The hunger strike of the prisoners ended with criminal proceedings, instigated by Berdyansk regional Prosecutor following the inspection of the CF. According to information offered by the deputy Prosecutor for Zaporizhzhya oblast’ A.Kudrayavtsev on February 20, the criminal proceedings were instigated on two accusations – the use of violence against prisoners and serious breach of the labor law. The criminal case was filed under Article 172.1 (gross violation of the labor law) and Article 365.2 (Abuse of power or authority, if accompanied by violence, use of arms and painful and humiliating actions, without evidence of torture).
3) Right to privacy:
а) Let’s remind you that on October 3 the Parliamentary Assembly of the Council of Europe defined the meaning of the term “political prisoners”. They are persons deprived of personal freedom, if the incarceration was committed with the violation of one of the fundamental rights guaranteed by the European Convention on Human Rights. However, the recent political persecutions, which have become systemic in Ukraine over the last years, testify to the fact that any incarcerated person, without exception, is subject to the violation of his/her rights, irrespective of the penitentiary institution where this person is imprisoned. E.g. the video showing Yu.Tymoshenko was made public and caused social outburst and outrage with the SPSU’s actions. According to Ye.Zakharov, co-chair of Kharkiv Human Rights Group, “Showing a video of a person in jail is violating his/her privacy. The person cannot be filmed on video without his/her consent, especially when that person is a woman staying in the hospital and in such condition. Moreover, the video was widely disseminated. It is a serious violation of the right to privacy. Such gross interference into the private life is prohibited by the Constitution and entails criminal liability. Besides, it is immoral”.
b) On May 24, Karina Klevzhits tried once more to visit her husband in the Correctional Facility No 55. She was determined to meet with her husband, become pregnant and give birth to their child. The facility administration, however, refused the meeting, claiming that Yu.Klevzhits is staying in TB ward. Karina Klevzhits approached the Prosecutor’s office and Central office of the SPSU, claiming that her rights are violated; she also intends to appeal to the European Court on Human Rights, as she believes that the government of Ukraine in this case is violating Article 8 of the European Convention – the right to private and family life.
4) Right to medical assistance.
Providing medical care for the persons in custody, their transfer to civil hospitals for treatment, duration of the process of discharge on health grounds under Article 84 of the Criminal code of Ukraine still remain serious problems.
а) On March 16, the European Court on Human Rights passed a decision in compliance with rule 39 of the Regulations on providing immediate medical care for Yu.Tymoshenko in the respective medical institution. Some lawyers claimed that it signifies the need for her immediate transfer to a hospital, while the officials, and, specifically, the Minister of Justice Lavrinovich, believed that there was no need for the transfer, as the necessary care could be provided in the CF. The head of the UHUHR Ye.Zakharov commented on the event “This Regulations’ provision exists and has been applied many times with respect to Ukraine and its citizens. We used it a lot of times. The European Court on Human Rights sends the same-day fax under the headline “The European Court’s Decision on urgent measures”. This document is submitted to the Ministry of Justice of Ukraine, department for the support of cases in the European Court on Human Rights”. The Decisions of the European Court on Human Rights are compulsory for the countries that ratified the European Convention. On July, 17, 1997 the Supreme Rada of Ukraine ratified the European Convention on Protection of Human Rights and Fundamental Freedoms.
b) However to save a person’s life it is not enough to release him/her from custody. Having to deal with health care system this person faces another. In a given case the human life was saved, but generally the state has to pay attention to the needs of terminally ill people, especially those released from custody and needing immediate professional help. On April 24 the European Court on Human Rights passed another recommendation under rule 39 of the Court’s Regulations with respect to immediate medical care for V.V. Velichko. The UHUHR attorney O.Sapozhnikova stated in her petition to the Court that “Since October 22, 2010 the petitioner had been kept in custody in Ismail pretrial detention center. I.e. for two years he stayed in this center without medical care. His health condition deteriorated and gives grounds for concern, as the petitioner’s disease, if not treated, can lead to lethal outcome. The petitioner has 3rd category of disability, no family or other relatives”. After the preventive incarceration was substituted with conditional release with written statement that he would not leave the place, Velichko was admitted to Odessa oblast’ hospital, where he undergoes his treatment.
5) Right to work.
The statements made by penitentiary system officials claiming that the inmates of their institutions can master a new profession and earn money for food and cigarettes, try to conceal hard labor conditions for the convicts and violations of their right, stated the human rights’ activists in their interview to Radio Liberty. “The convicts themselves are reluctant to share this information – admits the program coordinator for Kharkiv Human Rights Group A.Didenko. – The conditions of their work in many enterprises fail to meet even most basic safety norms”. The expert divulged that sometimes people have to work 12 hours a day. “As of today many enterprises under the penitentiary system operate within “shadow economy”. People’s salaries are not transferred to their accounts; they are paid in kind – with cigarettes, tea or something else. For me, it signifies that the enterprise evades taxes” – stated human rights activist A. Didenko.
4. Public control in the penitentiary institutions
1)National preventive mechanism against torture in prisons
For many years we underlined in our reports that the lack of public control over the SPSU operation is one of the major factors contributing to the systemic violations of human rights in this domain. Starting 2006, when Ukraine ratified the provisions of the Facultative Protocol to the UN Convention against torture, the civil society advocates systematically insisted that Ukraine should introduce one or several national prevention mechanisms against torture (hereinafter NPM). We tried to draw the authorities’ attention to this issue through public events, street actions, public statements, annual reports. The experts from NGOs took part in developing draft laws on NPM. Notwithstanding, over the course of 6 years Ukraine never managed to introduce the NPM in compliance with the provisions of Facultative Protocol to the UN Convention against torture. Finally a new Ombudsman under Supreme Radar of Ukraine Valeriya Lutkovska was elected to the office. The thing is, V.Lutkovska used to lobby public initiatives and the need to devise NPM draft law as a deputy Minister of Justice, but the actual law was never passed. That’s why one of the first initiatives of the new Ombudsman was the introduction of the NPM under “ombudsman+” model. The NPM Department was set up; all-Ukrainian training programs were launched to ensure public participation in the NPM monitoring plan, which would allow for nation-wide public control and monitoring of numerous and diverse penitentiary institutions in Ukraine. We hope that the NPM system will bring the public monitoring of prisons to the new level, ensuring high quality, systematic, pre-planned and surprise visits to the institutions under the SPSU.
The most crucial issue, though, is the attitude of bureaucrats towards members of public and cooperation in the human rights area, specifically the lack of good will among the officials needed for transforming the jails into civilized penitentiary institutions with due adherence to rights and lawful interests of persons in custody. On the one hand, the public representatives currently have the legal guarantees to visit these institutions without preliminary notification; respond to the instances of human rights violations; conduct monitoring on adherence to human rights etc. The members of Observing Commissions do that (we’ll describe the details of their activities below), but in practice this structure is inefficient due to several reasons. First, the Observing Commissions are formed predominantly of the former SPSU employees or public servants who have no intention to monitor penitentiary institutions with due efficiency; or of individuals who are ignorant of the human rights and interests of the people in custody. Second, the SPSU wardens have no positive incentives to open their institutions for public; they are unwilling to make their deficiencies known to public or to resolve the issues related to adherence to human rights in joint effort with the members of civil society.
The thing is the country leadership as well as the heads of SPSU system miss simple logic here. If the SPSU problems related to the conditions of the prisoners, medical care, release on parole, disciplinary punishments etc. become known to the public from the direct source of information, i.e. through regular visits of penitentiary institutions by civil society activists, then public at large will be aware of these problems and eager to resolve them. Next, public and authorities could join their efforts in seeking the ways for addressing the said problems. In practice, however, the openness of penitentiary institutions’ system is only declared by the SPSU that claims that it is ready for the humanitarian changes and adherence to human rights, while in fact it is not implemented. The broader the opportunities and competences of public activists in visiting the penitentiary institutions, the better is constructive dialogue and cooperation.
Let’s remind the reader that actual unchangeable figure representing the number of persons serving their sentence in penitentiary institutions is the product of society, and criminogenic situation in the country will not improve unless both the country leadership and the public come to understand that this “social product” should be released from jail with a new positive quality, new attitude towards the crime – this is the main goal of punishment. That is why public participation in psychological transformation of the prisoners should not be restricted, while the state should by all means promote fruitful cooperation and encourage public activists to participate in the reforming of the SPSU system. So far this system remains predominantly closed to the public, and we can only hope that eventually the situation will change for the better and the SPSU leaders will change their hostile attitude toward citizens and journalists and will not try to conceal the faults of their operation from public at large.
2) Observing commissions
Despite the efforts of the civil society to move forward the Observing Commissions’ operation by training future members for these bodies, compiling informational and analytical materials, the activities of the said commissions still remain a mockery of the notion of public control. Nevertheless, under the Criminal Procedural Code of Ukraine the Observing Commissions (OC), inefficient and imperfect as they are, so far remain the only bodies which exercise control over the observance of prisoners’ human rights.
In August – December 2012, questionnaires were sent to 9 out of 42 Kharkiv oblast’ OC. The addresses of the OC and the names of their heads were obtained from the official site of the SPSU for Kharkiv oblast’, which by now ceased to exist and was reopened under the new e-address
Not a single commission managed to provide exhaustive answers to all the questions. The letters to the Commissions in Dzerzhynsky and Kharkivsky districts were returned with the stamp “the addressee not found”, or “no addressee at this address”. It can be explained by the fact that the former head of the commission was dismissed and replaced by a new person, while the letter was still addressed to him. But we also included the names provided at Kharkiv SPSU Department site. Interestingly, only the heads of three commissions out of nine remained the same. Anyway, as opposed to Dzerzhynsky and Kharkivsky districts’ commissions, other OC managed to respond, even, though “the addressee was not found at this address”.
The OC of Balakliysky district failed to respond, although the letter was received by the addressee. The other responses were delayed. So much for the “accessibility” of the OC for rank-and-file citizens! It becomes clear why the prisoners find it pointless to address the commissions complaining of the human rights violations. Apparently they can hardly expect any response at all, let alone adequate reaction to the complaint.
Now, let’s analyze the provided responses.
1. The Observing Commission in Chervonozavodsky district (Kharikiv). Membership: 7 persons. Representatives of the community – 3 members (under p.9 of the OC Regulations public members should constitute at least half of the total number). It is typical that the action plan for 6 months contains no dates (timeframes) for any events. There is a notion that a given event takes place “on the regular basis”; e.g. the meetings with the convicts to discuss their personal problems should be conducted on the regular basis, and, moreover, with the institution administration participation! It is easy to predict the efficiency of such measure from the point of view of the uncovered violations of the prisoners’ rights! “The check-ups of the legality of penalties imposed on the inmates, i.e. placing them into the cells, isolation wards and incarceration” (!). it means that the OC has undertaken the prosecutor’s functions as these check-ups are within the terms of reference of the prosecutor’s office, while the OC under Article 25.2 of the Criminal Procedural Code of Ukraine, are to exercise control over the adherence to the prisoners’ rights. Abiding with the law and adherence to the prisoners’ rights are two different concepts, and the breach of legality does not necessarily mean the violation of the prisoners’ rights. Besides, the OC obligation to “check up the legality” of incarceration makes one assume that the OC plans have not been revised for at least 8 years, because it was exactly 8 years ago that the Correctional Labor Code of Ukraine, establishing the incarceration as confinement measure. No dates for the commission meetings, including field meetings in the penitentiary institutions are provided.
2. Observing Commission of Zhovtnevy district provided the work plan for the year 2012. The plan is sufficiently detailed. It is noteworthy that it includes an item “reports of criminal justice inspection at OC meetings concerning their work with individuals released on parole”. It is common knowledge that criminal justice inspections have not been doing anything in this area. Under the Ministry of Justice requirements and instruction of the SCPSU № 16/1-1855/Lc of 18.03.2011 on abolishing the instruction of the State Department of Ukraine for Penitentiary System (hereinafter – the Department) on temporary registration of the individuals released on parole and control over their behavior (№ 19/713/Kn of 13.02.2009), the registration of the individuals released on parole stopped. That’s why the level of OC members’ awareness of the legislation in force, and in particular, the parts that regulate their own operation, is of a special interest! The OC provided a schedule for meetings with the inmates of Kholodnohirsk CF №18 (as addendum) for the 1st and 2nd halves of the year 2012. These meetings were to be held between 12:00 and 2:00 pm once in a month. The same members of the commission had to see the inmates of Kharkiv pretrial detention center between 2:00 and 4:00 pm on the same day. No timeframe was provided for the intended visits to Kholodnohirsk CF №17, although the plan specified that they had to take place in May and in November. No plan for dealing with the individuals released on parole was provided.
3. Observing Commission of Ordzhonikidzevsky district (Kharkiv) (Kharkiv CF №43). Commission has 10members. Oddly enough, the OC, according to the information, has no chairman. 6 persons represent the community; 3 of them, though, are the heads of the street committees which makes one suspicious as to the fairness of their appointment to the commission. The joint meetings of the OC with the CF-43 commission on the issues of parole release were planned. Looks like this OC invented a new organizational form not stipulated by the Regulations (probably, the attendance of the so-called meetings on parole release by the OC members was meant). Moreover, we received the “Schedule for the joint meetings of the CF-43 commission and OC for the 2nd quarter of 2012” , agreed upon by the facility warden and the OC deputy head! So, the OC of the Ordzhonikidzevsky district together with CF-43 administration established an interesting practice of joint meetings on the agenda of parole release. These meetings were to be held 4 times a month, in August – even 5 times. Apparently, the plan refers to the meetings of the parole release commission, but the submitted schedule testifies to a different understanding of joint events planned by the OC and CF-43 administration.
4. Observing commission of Kominternivsky district. Membership — 10 persons, with only 4 of them representing public organizations. The provided plan was the most voluminous of all. IN fact it is the only commission which clearly planned monthly meetings (in compliance with the legislation) and described the agenda to be addressed each month. However, the dates and time for the meetings were lacking. The schedule for the meetings with the inmates of Kachanivka CF №54, check-ups of the inmates’ conditions in the facility for 2012 were compiled but never submitted. No information was provided on the dates or time for the visits to CF – 54; neither was it found in the action plan. No plan for work with individuals released on parole was provided.
5. Observing Commission of Kominternivsky district. Membership — 13 persons, with only 3 of them representing public organizations, in violation of the legislation in force. The work plan for 2012 was provided. It is noteworthy that it contained no timeframes for the events mentioned there. Instead the measures are referred to as “conducted on the regular basis”, “constant”, “carried out in the course of the year” ( which is, in fact, all the same) , “over the year 2012” ( all the same, again!) and “as need arises”. Even the meetings with the inmates of penitentiary institutions are conducted “regularly”, and no one specifically is in charge – the whole OC is responsible for them.
This vagueness can hardly contribute to the systematic meetings with the prisoners. The majority of plans were compiled in haste and rather negligently. Only some of them can boast of detailed and viable provisions. Lack of timeframes for specific events, lack of the persons directly responsible for the implementation are among the most typical flaws of the plans. Some commissions planned less than one meeting per month as stipulated by the Regulations on OC. Not all the OC devised the schedule for meetings with the convicts. Personal responsibility for the OC action plan is recommended, as it would enhance not only accuracy and clarity of the commission’s operation, but also its efficiency. If each commission member develops his/her action plan with specific terms of responsibility, then all the plans can be compiled and approved alongside with the general OC plan, defining the areas of operation which can be addressed by the OC as a whole. If the OC members wish so, the general OC plan can envisage also measures which can be implemented by several members of the commission.
Under p.16 of the Regulations, the OC meetings are to be held right in the penitentiary institutions at least on a quarterly (semi-annual) basis. The OC either failed to provide any information with this respect, or did not give any specific dates of the planned meetings etc. Interviews conducted with the commission members led us to believe that the majority of them were not even aware of the obligatory nature of the meetings which ought to be held in the penitentiary institutions. That is why specific dates are to be reflected in the commission action plans. Characteristically, only one commission (in Zhovtnevy district) offered specific dates and time for the planned meetings. I believe that dissemination of this practice could be instrumental in making OC operation more focused.
The issue of unequal representation of public and state authorities within the commissions is a problem common for all the OC. The majority of the OC has 1-2 more “official” members than the members of general public. Some of the OC, however, have even less representatives of the community, e.g. Pervomaysky district OC, which has only 3 members of public among the total number of members, which is larger than stipulated by the Regulations. This situation can be explained by lack of interest towards OC operation among the NGOs of some districts. Actually, even the organizations represented in the OC, are not the ones that deal with the penitentiary system or work for the reforming of criminal justice. Mainly they unite former public servants, WWII veterans, Afghan veterans, street committees members, people affected by the aftermath of the Chernobyl NPP disaster, clergy. Their membership in the OC shows that specialized organizations are scarce. Not a single OC in Kharkiv oblast’ (with the exception of Balakliya rayon), is headed by a member of public, or has a public representative as deputy head or secretary. The reason for this is that under the Regulations both the head and the secretary are elected by the OC founding body. Easy to guess that a state official a priori is not interested in OC active operation (as any members’ excessive activity means more of a “headache” for him) becomes the head of the commission. As a result, the whole OC operation can become dependent on the state officials’ will and won’t be able to realize its human rights protection initiatives, involving the community members into the process. These latter thus become just “petitioners” seeking the OC head’s permission every time certain initiative comes into being. Naturally the OC head is an elected official with a lot of other duties apart from the observance of the prisoners’ rights or even meetings with other commission members.
The majority of the penitentiary institutions in the oblast’ lack available information on the OC members or even on the OC address. As a result the convicts do not know much about the OC. The prevalent number of the convicts responded they have never heard about the OC. E.g. some inmates of Temniv CF №100 mentioned that they themselves prepared and displayed the information board with the OC data a year ago, just before the commission visit. This visit, by the way, was just a single occasion, according to the inmates. The verification of the OC meetings with the agenda of observance of the prisoners’ rights (in 9 OC) was also conducted on the eve of the parliamentary elections or on the very Election Day.
Among other things we were surprised to find out that the OC are very hard to reach by phone. Sometimes we had to dial 5 different numbers before getting any response at all. Then we were either redirected to another number or asked to call later etc. It is a very vivid example of how difficult it would be to reach an OC from any penitentiary institution, where phone calls are limited. Only one OC (!) was willing to exercise control over adherence to the election rights of the convicts by direct observation of the voting process in Kholodnohirsk CF №18. All the rest never gave it a second thought.
E.g. the head of Chenozavodksy district OC O.Bakshiyev bluntly told us that he had other things to do before the elections. The other commission heads either did not understand what we were talking about or claimed that such control was unnecessary or redundant for many reasons (e.g. there are other control bodies present, there are no problems, nothing can happen there etc.). By the way, the phone calls we made were aimed not only at finding out whether any control over observance of the prisoners’ election rights was planned, but also at checking the accessibility of the Kharkiv oblast’ Observing Commissions for the potential convicts in isolation custody.
The Kharkiv oblast’ OC deserves a special mention. One of the authors of this report became a member of this commission and could see with his own eyes the inefficiency of its operation which led him to consider the possible reasons and hindrances accounting for its faulty activity. The new membership (12 persons) of the OC was approved on April 13, 2012. After the organizational meeting not a single event was organized in 6 months. Finally, one of the authors of this report wrote a letter to the OC head; as a result the OC managed to convene, as it turned out, with the new head. Besides, at the very beginning the request for the passes allowing all the commission members entrance to the penitentiary institutions was made
Later, however, the OC head O.Anpilogov changed his mind and declared at the OC meeting that after discussing the matter with the head of the SPSU head for Kharkiv oblast’ they arrived at the conclusion that issuance of such passes is not expedient, and assured the commission members that no problems will arise for their visits to the penitentiary institutions. In fact the official opted for starting his control over observance of prisoners’ rights with violation of p.8 of the OC Regulations. Moreover, when reprimanded by V.Chovhan, who stated that this decision was illegal and the matter would have to be brought to court, O. Anpilogov reacted in a way, most inappropriate for a high official – he screamed, made humiliating utterances and threatened to strike the critic’s name from the list of the OC members. The criticism voiced by the aforementioned OC member with respect to O.Anpilogov’s requirement to inform him of any planned visits to the penitentiary institutions, so that he could, in his turn inform the SPSU head for Kharkiv oblast’, met with similar violent reaction. Obviously the proposed algorithm would make any unplanned visits impossible, so that the facility administration would have plenty of time to get ready for the visit aiming at monitoring the observance of the prisoners’ rights. This critique, however, was not even discussed. On the contrary, the proposed algorithm was supported by many OC members.
The statistical data reflection the oblast’OC operation over the year are unsatisfactory as well. E.g. not a single convict has approached 20 out of 42 oblast’ OC! 32 out of 42 OC failed to assist the convicts in seeking employment. And the 10 OC which did help, provided assistance to 27 individuals only! The number of violations committed by the commission over the first 6 months of 2012 is another cause for concern.
5. Report of the European Committee for prevention of torture and cruel or degrading treatment or punishment.
On November 14, 2012 the report of the European Committee for prevention of torture and inhuman or degrading treatment or punishment, based on the results of the visit to Ukraine between November 29 and December 6, 2011, was published.
Report mainly addressed the conditions in which the inmates of the institutions under Ministry of Interior of Ukraine are kept. Some portion of it, however, dwelt upon provisions governing the operation of the SPSU institutions.
Thus the Committee representatives visited the pretrial detention centers in Kyiv and Kharkiv. In the report that followed the Committee appreciated the efforts of the Ukrainian authorities to reduce the number of people kept in the pretrial detention centers, but pointed out certain serious problems. Despite the fact that Kharkiv pretrial detention center recently reduced the number of its inmates by 1000 persons that were transferred to other facilities, the situation still remains complicated. The Committee delegation uncovered a horrifying fact – 44 adult inmates were held in the cell 45 sq m big. It means that one person had about 1 sq m of space for himself. Moreover, the cell had only 28 beds, so that the inmates had to take turns to sleep.
The information that boxes with total size of only 0.8 sq m were used for the inmates of this temporary detention facility is also overwhelming. The penitentiary institutions’ administration explained that they were used for temporary stay of the inmates and for their interrogations by the security staff. The Committee pointed out that such premises cannot be used even for short periods of time. (p.44 of the Report).
The delegation also stated that iron grates on the windows are also inadmissible and the administration had to assure the Committee members that the grates would be removed in the nearest future. Later, commenting on the Report, Ukrainian authorities advised that they had been removed. It is noteworthy that during every visit the Committee brings the inadmissibility of the grates to the attention of the administration and every time this latter promises that they would be removed. Nevertheless, the reluctance of Ukrainian officials to comply with the Committee recommendation is evident, as even today, under p. 17of the Internal Regulations for the penitentiary institutions (Order №275) the windows in the cells and disciplinary isolation wards of the penitentiary institutions have metal welded bars. By the way, despite of numerous NGOs’ protests against this normative act, the Order №275 has not been changed since 2007.
As to the Committee’s comments on the regulations and actual conditions in which the detainees are kept in custody, the Ukrainian authorities responded that the Ministry of Justice of Ukraine is developing the draft order “On approving the Internal Regulations for penitentiary institutions of preliminary incarceration” (p. 46)
1. Completing the process of SPSU transfer under the Ministry of Justice jurisdiction in compliance with the PACE Resolution № 1466 (2005).
2. Conducting complex analysis of the criminal and penitentiary legislation in force and practices of its application in compliance with international standards.
3. Revising the Concept for the reform of the penitentiary system in conformity with the
Concept for the reform of criminal justice system, involving wide circles of experts into discussions, introducing independent expertise of the Concept and public hearing on it.
4. Banning the provisions of the Departmental current legal and normative acts which violate the human rights.
5. The new Concept for the reform of the penitentiary system should become the basis for the new draft law on amendments to the Criminal and Criminal Procedural Code, which should meet international standards; draft law on amendments to the Law “On State Penitentiary Service”, draft law on “Disciplinary bylaws for penitentiary service of Ukraine”, the draft resolutions of the Cabinet of Ministers of Ukraine “On serving in the State Penitentiary Service of Ukraine ” and “Order for one-time monetary compensation in case of penitentiary serviceman’s death or injury and reimbursement of material damage caused while in the line of duty” .
6. Revising the tasks and legal foundations in the operation of the special units; putting an end to their use in searches and other actions within the penitentiary institutions.
7. Developing and introducing mechanisms and procedures for efficient and rapid response to the notifications on potential violations of human rights in the penitentiary institutions together with the leading human rights organizations.
8. Devising procedure for constitutional petition to determine the jurisdiction of the court hearings of the prisoners’ complaints against actions (inertia) of the penitentiary institutions’ administration.
9. Developing and introducing mechanisms and procedures for the visits to the penitentiary institutions in compliance with the requirements of the Facultative protocol to the UN Convention against torture.
10. Promoting other mechanisms for public control over the penitentiary institutions’ operation.
11. Establishing an efficient system for petitioning; putting an end to the practice of penalizing the prisoners for their appeals against the penitentiary institutions’ administration.
12. Compiling an exhaustive list of the regime violations entailing disciplinary measures.
13. Checking up all the cases of corruption revealed in the operation of the system officials, public condemnation of corruption, if confirmed.
14. Implementing research programs and projects, including the human rights NGOs’ projects addressing the observance of the prisoners’ rights and penal system functioning as a whole.
15. Raising public awareness with respect to the operation of the penal system, actual situation and problems in this area; setting up press-service under each Department.
16. Changing the subordination of the medical institutions making them accountable to the Ministry of Health.
17. Ensuring confidential meeting with an attorney for the inmates of the penitentiary institutions.
18. Determining by procedural laws of various judicial branches the order for direct participation of the convicts, held in custody, in the court hearings.
19. The Ministry of Justice of Ukraine should revise the norms for the convicts’ personal belongings to bring them into conformity with international standards;
20. The State penitentiary service of Ukraine should provide for the regulation of legal relations which form in the process of imposing/serving the sentences (video-observation, lighting, phone calls).
21. The State penitentiary service of Ukraine should revise the provisions of Internal Regulations for the penitentiary institutions and other normative acts with the goal of harmonizing them with the European Court on Human Rights’ decisions and European Committee reports with respect to torture prevention and cruel and humiliating treatment or punishment.
22. Revising the provisions of the State Policy Concept for reforming the State penitentiary service of Ukraine with respect to self-sufficiency requirement in penitentiary institutions as a component of involving the inmates into socially useful work.
23. Revising the conditions in which the prisoners are kept in the disciplinary isolation cells, bringing them into compliance with the European Committee recommendations to Ukrainian government with respect to torture prevention and cruel and humiliating treatment or punishment.
24. Setting up a group consisting of national and international experts, which would do the comprehensive revision of the criminal and penal law, taking into account the European rules for prisons, standards of the European Committee with respect to torture prevention and cruel and humiliating treatment or punishment, the European Court on Human Rights’ decisions.
25.Amending current legislation on pardon for the persons serving life terms.
26.Introducing changes forbidding public officials’ participation in the OC to the Regulations of Observing Commissions approved by the Resolution of the Cabinet of Ministers of Ukraine № 429 of April 1, 2004 (the version of the Cabinet of Ministers of Ukraine № 1042, of November 10, 2010).
27. SPSU territorial bodies and the Observing Commissions should ensure prisoners’ access to their information (i.e. addresses, phone numbers, members, functions); this information should be available in the social/psychological services’ premises of the penitentiary institutions.
28. All the members of the Observing Commissions in Ukraine should be provided with the passes enabling their visits to the penitentiary institutions in the respective regions.
29. Penitentiary bodies and institutions should broadly use the OC and NGOs’ resources in assisting former convicts to adjust after release.