Report concerning the investigation of the mass unlawful use of force to the convicts of the Oleksiivska correctional colony (No.25) on January 8, 2020
Oleksiivska correctional colony (CC) No. 25 is considered a model one. It is perfectly clean, there are good living conditions, a winter garden, a zoo, which even has an alligator, equipped club, a church. Constant work, and they say that compared to other CCs the salaries are high. However, the convicts are terrified of getting here and even harm themselves to avoid it.
While the Penitentiary Service has tried to present Oleksiivska No. 25 as a model prison, this is not the impression given by prisoners and those who have had dealings with it. The least signs of disagreement with anything are punished by brutal torture. Here you can’t complain about anything. There is total dependence on the prison administration; hard draining work in two shifts, and sometimes even the entire 24 hours without a break leading to total exhaustion. However, the main thing that was hard for the prisoners to endure were the constant ill-treatment that became the norm.
Oleksiivska No. 25 is also a record-breaker for the number of times that a notorious article of the criminal code has been used against prisoners. As reported, Article 391 enables the prison administration to bring criminal charges against a prisoner over essentially minor infringements. Since such criminal charges can be used to increase a prisoner’s sentence by up to 3 years, it is easily abused by prison staff, for example, against prisoners who complain of ill-treatment.
The convicts in the colony were so intimidated that for many years they did not dare to complain about the actions of the administration, refused to talk to inspectors, even in conditions of confidentiality.
Serious concerns about Oleksiivska No. 25 have been raised on many occasions, including by the European Committee for the Prevention of Torture. Here is what it found (excerpt from the visit report from 1 to 10 December 2012):
«16. However, the situation of sentenced prisoners held at Correctional Colony No. 25 in Kharkiv is a source of grave concern to the CPT. It clearly transpires from the delegation’s findings that the ill-treatment of male prisoners by staff or by those inmates who had a designated role to assist penitentiary personnel was far from uncommon. Further, many allegations of ill-treatment received from prisoners who were or had been held at Colony No. 25 refer to treatment of such severity that it could be considered as amounting to torture (e.g. extensive beatings, often combined with the dousing of inmates with pressurised water from a fire pump14 or while being tightly restrained in a straight-jacket; submersion of the head in water to the point of suffocation; application of handcuffs which were subsequently hit with a hammer to force them up the forearms; sexual assault at the instigation of staff). The alleged ill-treatment was mainly said to have been inflicted in the offices of operational officers (located in the administrative building) or offices of inmates assisting staff, within the disciplinary and segregation (DIZO/PKT) unit or in the first exercise yard of the DIZO/PKT unit (where the radio had allegedly been turned up loud to block out the cries of those being ill-treated)…
18. The delegation gained the impression in Correctional Colonies Nos. 25 and 81 that the ill-treatment of inmates had become an almost accepted feature of keeping good order and combating prison subcultures. The means employed by staff, partly relying on a select group of inmates having a designated role to assist them, were apparently aimed at obtaining submissive behaviour from all inmates as from the first days after their admission. The admission period was thus said to be a particularly traumatising experience. Prisoners were allegedly forced to exercise physically beyond the point of exhaustion, whatever their state of health, and subjected to various provocations by staff (e.g. prisoners made to clean the floor or the toilets after prison officers made them dirty). Inmates refusing to or being unable to comply with the “daily regime” were said to be subjected to the treatment described in paragraphs 16 and 17. Those identified by staff as likely to cause trouble in prison remained at heightened risk of being subjected to physical ill-treatment by staff and/or by inmates assisting penitentiary personnel during their entire stay in these colonies.
Of particular concern were accounts from several inmates according to which they had been instructed by staff to assault or put undue pressure on other inmates. These prisoners had allegedly been under threat, in the event of refusal to comply with the staff’s instructions, of losing any chances of conditional release, of being left unprotected from assault by inmates who may wish to cause them harm and/or beatings by staff. In one such case, the inmate in question allegedly had a prior arrangement with members of staff to assault another inmate in exchange for his transfer to another penitentiary establishment».
You can learn more about the abuse of convicts in the colony No. 25 from two books published by the Human Rights Publishing House: "Abandon Hope All Ye Who Enter Here" and "Ukrainian GULAG" (both in Russian).
Events of December 2019
At the beginning of December last year, the State Bureau of Investigations brought criminal charges against one of the deputy heads of the prison. He is accused of abuse of power over corrupt dealings involving the resale of food items purchased with state funding for the prison. The individual has been remanded in custody.
KHPG lawyer Volodymyr Hlushchenko and other monitors visited the prison on 6 December and, as usual, heard no complaints. They were aware that somebody had run ahead of them, clearly to prepare the way, before they reached the medical unit, and reported that most of the men pretended to be asleep.
It was also learned from a source in the prison, Zakharov notes, that at the end of December the head of the prison himself was informed that he was under suspicion of a crime. He has been suspended with his first deputy standing in as Acting Head.
It is possible that these changes gave men who are normally too terrorized to speak out some confidence, or on the contrary made them fear that the situation would become even worse.
Events of 3 January
Whatever the reason, when KHPG lawyer Hennady Tokarev visited the prison on 2 January to speak with his client, he learned that a number of prisoners wished to make complaints about the illegal activities of the prison administration. He therefore arrived back the following day, with colleagues Volodymyr Hlushchenko and Tamila Bespala. They had time only to speak with 21 of the prisoners and to receive written complaints from them. They promised to come back after Orthodox Christmas, although that proved impossible because of the actions of the prison administration.
Brief details of the men’s complaints are translated below and suggest that the men have been subjected to a shocking level of ill-treatment and, in many cases, torture. Nor is this all since the men are alleging that the ill-treatment was aimed at extorting money out of their families.
We summarized the men’s allegations as follows.
«Most of the prisoners alleged various forms of harsh treatment, with these often reaching the level of torture. They were beaten on various parts of the body, bound with scotch tape to their bed; stretched in splits position; asphyxiated through a bag being placed over their heads; subjected to electric shocks, etc.
Prisoner M. was beaten and kicked over his whole body. They twisted his arms, bound both arms and legs with scotch tape and a belt to a stool so that he could hardly breathe. He was bound with scotch on the head and had a gag placed in his mouth, had two hats placed on his head and was held in this position for seven days. He was not given any food during that time, only tea. He was forced to sit in his own urine and faeces, with this making his legs and buttocks get infected. When they untied him, there were a whole of worms eating the dead flesh in those places. After that M. was told that if he told anybody about this, he would die of heart failure in the prison.
Prisoner T. had his hands tied with scotch and a wet rag thrust in his mouth. He was beaten around the ribs and kidneys until he lost consciousness, with this being repeated several times. After that, they thrust a wooden stick up his anus. This torture continued later. For example, on orders from the administration, T. was viciously beaten up by two of the administration’s voluntary helpers as a result of which he attempted suicide.
Prisoner P. was stripped naked, had his arms tied with scotch. An officer sat on his back, and they put a packet with a wet T-shirt over his head, beat him around the head, burned a newspaper on his buttocks; thrust a stick with a condom on it into his anus.
Prisoner K. had his hands bound with scotch and was hit in the stomach. When he fell from the blow, they began hitting him, kicking and beating with a bat, with this continuing for about 20 minutes. After that, an officer sat on his back and pulled his arms over his head so that they reached the floor. At that moment, he felt a cracking sensation and unendurable pain. An arm injury was thus inflicted, with the marks of this still present now. After all of this, K. was forced to sweep the alley all day. He asserts that the ill-treatment took place virtually every day and even several times a day.
According to all the victims of torture, the treatment was under the leadership of operations officer S.S. Harkavy and that sometimes prisoners who act as voluntary administration assistants took part in them.
Such treatment is aimed at extorting money (the men tortured are given telephones so that they ring their relatives and ask them to transfer money to certain bank accounts), at forcing them to extort money from other prisoners, or because of a mobile phone found, a refusal to become a prison administration helper, ethnic origin and other reasons.
The prisoners also alleged being driven to suicide and complained of the lack of medical treatment, inadequate wages, demands for money from relatives, demands for payment for getting early release on parole, etc.
Prisoner B., who is Jewish, is subjected to a constant anti-Semitic campaign by prison staff, with them insulting him, and pushing him to suicide. He asserts that they prepared a string and loop and said “Hang yourself!”. B. has begun having epilepsy-like attacks which he thinks are linked with having been injected with an unknown substance. He had such an attack while speaking with the monitors, lost consciousness and did not have time to tell them all that he wanted to say»
While prison staff would not have known all the details about the men’s allegations, it would have been quite clear that these were complaints about their treatment in the prison.
According to all victims of torture, the tortures were carried out under the direction of operative officer G., sometimes the convicts who were voluntary assistants of administration took part in it.
The reasons for such actions include extortion (tortured persons were given phones to call their relatives to transfer money to certain bank cards), coercion to extort money from other convicts, a found mobile phone, a refusal to become a volunteer assistant to the administration, ethnicity, and others.
The convicts also complained about being driven to suicide, lack of treatment, inadequate salary, extortion from relatives, extortion for parole and more.
Most of the complainants mentioned the name of G., an employee of the colony’s operational unit and one of the colony’s leaders. According to them, the first of them personally took part in numerous tortures of convicts, and the second one gave instructions to commit such actions, and from time to time personally took part in tortures. Seeing that the people willing to file complaints numbered in dozens, if not more, the administration of the colony stopped the reception of convicts by human rights activists, promising that it would be continued after the Christmas holidays on January 8. The administration staff was unusually polite that day, calling the convicts by name and patronymic.
Events of 4-8 January
Over the weekend, operative G. was fired. The newly appointed acting head of the colony was transferred to the position of the first deputy head of the CC No.18, and the first deputy head of the CC No.18 was transferred to the same position in the CC No.25.
On the night of January 7-8, 2020, under the pretext of possible destabilization of the situation in this institution, special forces units (so-called rapid response teams – RRG) entered the colony with the stated purpose of conducting a general search, in the amount of about 200 soldiers wearing protective armour. (clothes, helmet, etc.) and armed with rubber truncheons. At 3 a.m. on 8 January, Penitentiary Service spetsnaz officers in masks and full military gear dragged the prisoners, wearing only their underwear, to the headquarters, refusing to let them get dressed. They were forced to the floor, face down, with their arms behind their backs, handcuffed or bound and then dragged to the headquarters. Some of the prisoners were outside for over an hour (in temperatures of under 3 °C.)
At the headquarters, the prisoners were forced to crawl on their stomachs upstairs to the first, second and third floors and some of them were savagely beaten while doing so. All of the prisoners have badly grazed elbows, knees and stomachs. They were held in this condition from 3 a.m. to lunchtime. According to one source, it was firstly those prisoners who had complained to KHPG staff on 3 January who were beaten. 22 prisoners who had special methods applied, were forced to write explanatory notes, saying that they had shown resistance and obstructed a search, and that therefore physical force and special methods had been applied and that they had no complaints. After this, the prisoners who had been forced to write such explanations were moved to other Kharkiv prisoners. However, many of those who were beaten remain in the medical unit of the prison.
Such actions violate Article 8 of the Criminal-Executive Code of Ukraine, which prohibits the forced interruption of sleep of convicts at night, and other Articles of this code. The actions of the special forces have the characteristics of a crime under Articles 127, 364, 365 of the Criminal Code of Ukraine and violate Article 3 of the Convention.
On the same day, the so-called “special conditions regime” was introduced in OCC-25, human rights defenders were not let in, meetings with lawyers were banned, and assistant deputies were not allowed to pay monitoring visits, although this was a direct violation of the law.
We would like to note that the administration of SCES of Ukraine qualified those events in the following form:
«According to the available operative information, a group of convicts with negative attitude serving sentences in the state institution “Oleksiivska Correctional Colony (No. 25)” (hereinafter – the institution) planned to take measures in the near future to commit group illegal actions on the part of convicts, destabilize the situation in the specified institution, including by means of criminals from beyond the institution and individual organizations connected with criminality.
On 08.01.2020 in order to identify and seize the items, products and things prohibited for use by convicts, as well as to identify signs of other illegal acts and crimes, the general search involving additional forces and means from other institutions of interregional administration, including rapid reaction groups and territorial paramilitary formations was organized and carried out in the institution.
During the search, a number of prohibited items were found and seized, including three mobile phones.
In connection with group illegal actions, physical resistance to staff and non-compliance with their legal requirements, obstruction of the search, riots, some convicts were subjected to physical force and special means – the handcuffs. After the use of physical force and special means, the convicts were examined by medical staff. Their health is satisfactory.
Given the case of group disobedience, guided by the requirements of Article 105 of the Criminal Executive Code of Ukraine and the Rules of Internal Schedule of penitentiary institutions approved by the order of the Ministry of Justice of Ukraine of 28.08.2018 No. 2823/5, in accordance with the order of the head of the North-Eastern Interregional Department for Execution of Criminal Punishments and Probation, a special conditions regime has been introduced in the institution since January 8, 2020, during which the protection and supervision of convicts is strengthened and other additional regime measures are carried out».
Everything we know about CC-25 and recent events in it contradicts this view. There was no riot in the colony and it was not prepared. In our opinion, the actions of the SCES are dictated by the desire to shut the mouths of those who complained, and to prevent the investigation of these complaints.
Preventing a consulting assistant of a People’s Deputy of Ukraine from entering the colony
On January 9, 2020, two consulting assistants of the People’s Deputies of Ukraine were twice barred from entering the territory of the Oleksiivska Correctional Colony. For the first time, this was due to the fact that the administration of the institution could not ensure the safety of visitors, as representatives of the Verkhovna Rada Commissioner for Human Rights (the Commissioner) were already in the colony.
After the representatives of the Commissioner and other persons left the territory of the colony, the assistants of the People’s Deputies tried to enter the colony again, but were not allowed to enter again. None of the administration representatives came to them to explain the reasons for non-admission.
On January 10, an assistant to a People’s Deputy and two KHPG employees were not allowed to enter the colony No.43, where they arrived to inspect and record the bodily injuries of convicts transferred from the colony No.25.
In each case of non-admission to the territory of the institution, the assistants of the people’s deputies called the police and filed allegations of crime.
On January 15, a People’s Deputy’s assistant was again denied entry to correctional colony No.25.
On January 11 and 16, a member of the regional supervisory board, for whom the same rights are provided for visits to the colonies as for assistants to people’s deputies, was barred from entering the colony.
Failure to allow a consulting assistant of a People’s Deputy of Ukraine to enter is a direct violation of Article 24 of the Criminal Executive Code (CEC), which entitles such persons, without special permission (accreditation) to freely visit penitentiaries at any time for control and conducting inspections (optional – accompanied by three medical workers for medical examination of convicts and up to two representatives of the media).
Such actions of the colony administration contain signs of a crime under Article 351 of the Criminal Code (CC) – obstruction of the activities of a People’s Deputy of Ukraine.
Obstruction of the activities of the representatives of the Parliamentary Commissioner for Human Rights
On January 11, Oleksandr Gatiyatullin, a representative of the Commissioner, told the media that he and other representatives had not been provided with the documents they had requested for inspection, and that all management had disappeared instead of assisting the Commissioner’s representatives. After that, the representatives of the Commissioner were not given the opportunity to bring media workers with them on the territory of the institution.
Such actions contain signs of the crime provided by Art. 344 of the Criminal Code – interference in the activities of a statesman, in this case –concerning the representatives of the Commissioner.
Barring the lawyers from providing legal assistance
On January 9, 11 and 13the administration of the colony deprived the lawyer Tamila Bespala of the opportunity to provide legal assistance to her client, who is serving his sentence in the colony No.25, among those who complained on January 3 about the actions of the administration of the colony, motivating the refusal by the fact that due to the introduction of special conditions in the institution the meetings with convicts were cancelled, while on January 13 the lawyer was finally provided with a copy of the order of the acting head of the colony, in which he refers to the order of the head of the North-Eastern Interregional Department for the Execution of Criminal Punishments and Probation of the Ministry of Justice of Ukraine, Romanov,of January 8“On the introduction of a special conditions regime in the state institution “Oleksiivska Correctional Colony №25”. A copy of this order of the head of the interregional department was never provided to human rights activists, lawyers of the KHPG, or even to the representatives of the Commissioner. On January 9, 14, 15, and 16, KHPG lawyer Gennadiy Tokarev was also not admitted to the colony No.25, and on January 15 and 16, lawyers Volodymyr Glushchenko and Hanna Ovdienko were not admitted, either.
It should be noted that a “meeting” with a lawyer, as interpreted by the administration of the colony, is only a means to ensure the lawyer’s legal assistance, as referred to in Article 110 § 3 of the CPC, and therefore can in no way be considered a visit, the cancellation of which(in particular, with relatives) is referred to in the order of the acting head of the institution (see copy of the order).
Meeting with a lawyer is regulated by a separate rule – the third part of Article 110 of the Criminal Procedure Code of Ukraine, which does not contain restrictions on their number and duration, the right to them remains unchanged even when a convict is placed in a pre-trial detention centre, transferred to a cell-type premise, or when a convict is treated in inpatient health care facilities.
Article 105 of the CEC itself, which is used as a legal basis for the introduction of a special conditions regime, contains only the strengthening of protection, supervision of convicts, and the implementation of other additional regime measures as measures in the introduction of such a regime.
Given that the lawyer’s meeting with the convict takes place in this institution without the lawyer being brought to the territory of the colony, there is an obvious unfounded failure to allow the lawyer to meet his client for legal assistance, and failure to provide the convict with a confidential meeting with a lawyer is a violation of Article 110 of the Criminal Procedure Code.
Lawyer T. Bespala called the police on January 13 regarding the interference in the activities of a lawyer or a representative of a person and filed a complaint about the committed crime.
Such actions are an obstacle to the lawful activities of a lawyer or a representative of a person punishable under Article 397 of the Criminal Code of Ukraine.
Lack of recordings of technical means of surveillance and control (video cameras) regarding the events of January 8, 2020
In accordance with the Procedure for the use of technical means of supervision and control in correctional and educational colonies of the State Penitentiary Service of Ukraine (approved by the Order of the Ministry of Justice of Ukraine of June 26, 2018 No. 2025/5 (hereafter – the Procedure), since July 2018, all penitentiary institutions are equipped with technical means of surveillance and control (video cameras), video cameras in the institution form a video surveillance system. The procedure provides for emergency power supply when the main and backup power supplies are turned off for 16 hours. Disabled video cameras violate almost the entire Procedure. The Procedure also obliges the staff of the institution to use portable video recorders, in particular during personal searches of convicts, application of physical measures and special means to them. Therefore, during the general search of convicts of the institution and the application of measures of physical influence and special means to them on January 8, 2020, the relevant officials were obliged to conduct video recording of these events.
According to the SCES, since January 7, all video cameras in the institution have been turned off, so the investigating authorities have not received physical evidence that allows to unambiguously determine the lawfulness or unlawfulness of the actions of relevant officials. According to the Procedure, technical means of supervision and control must be constantly maintained in working order, and actions that caused the inoperability of technical means provided for in Articles 361 of the Criminal CodeconstituteUnauthorized interference with the operation of computers, automated systems, computer networks or telecommunication networks, Article 362 of the CC - Unauthorized actions with information processed in electronic equipment (computer), automated systems, computer networks or stored on the media of such information, committed by a person who has the right to access it, 363 of the CC - Violation of the rules of operation of electronic equipment (computers), automated systems, computer networks or telecommunication networks or the order or rules of protection of information processed in them.
In any case, officials responsible for ensuring the operability of technical means should be subject to disciplinary action for failure to comply with the law.
This situation with the lack of video recordings of video cameras is observed in every case of use of RRG in the institutions of the SCES of Ukraine, during which there were mass abuse of power by special forces, in particular, in the State Institution “Berdyansk CC (No.77)” there are reasonable grounds to believe that the inoperability of video surveillance systems, and even more so, the lack of recordings on portable video recorders of relevant officials, is the result of deliberate actions by the staff of the SCES.
Inefficiency of the investigation
As the events in OCC-25 received a great public response, the next day, January 9, 2020, the Prosecutor General’s Office of Ukraine (PGO) launched criminal proceedings for abuse of power or official authority by the penitentiary administration.
In their allegations of torture, the convicts’ lawyers asked the investigating authorities to apply security measures to the victims, but this was not done in time. Investigators and prosecutors attributed this to imperfect legislation, although since 2013 Ukrainian law has provided for persons in penitentiaries or pre-trial detention centres to be transferred to another penitentiary or pre-trial detention centre or to another place with special detention regime to ensure their protection, as well as separate holding.
In October 2020, the Ministry of Justice of Ukraine issued an order amending the “Procedure for Measures to Ensure the Security of Persons Detained in Penitentiary Institutions and Pre-Trial Detention Centres”, writing about the possibility of transferring convicts.
As the convicts were cut off from the assistance of human rights defenders and lawyers, surrounded by special forces fighters, on January 10, 2020, KHPG lawyers filed an application with the ECtHR pursuant to Rule 39 of the Rules of Court requesting the Government of Ukraine to take interim/urgent measures to ensure the safety of OCC-25 convicts. However, the ECtHR did not consider it necessary to instruct the government to take urgent measures.
Immediately after the information on the events of 8 January 2020 was entered into the Unified Register of Pre-Trial Investigations (hereinafter - URPI) a pre-trial investigation was launched in OCC-25, which was entrusted to investigators of the State Bureau of Investigation (hereinafter –SBI). In fact, from the very beginning there were signs of its ineffectiveness, in particular: interrogations of colony staff and officials from other penitentiaries and bodies were formal, and were conducted in such a way that evidence of guilt could be obtained only if the representatives of the administration admitted exceeding power, which is completely unrealistic.
At the same time, the administration of OCC-25, citing the “special conditions regime”, prohibited the doctor’s entry to the colony for the examination of convicts, as well as a psychiatrist for interviewing the applicants in accordance with the provisions of the Istanbul Protocol, both with a lawyer and an assistant to a People’s Deputy of Ukraine, although it is provided by law. The lawyers of the victims were not given the opportunity to meet with their clients detained in the institution for ten days, the lawyers called the police several times, the information was registered with the URPI, but no action was taken.
Pressure on the victims
Convicts have been under pressure from penitentiary authorities since the introduction of the RRG on January 8, 2020. The convicts were constantly summoned to the “headquarters”, the colony staff and operatives from the South-Eastern Interregional Administration held endless “conversations”, intimidated by the fact that if they did not withdraw their complaints, they would be subjected to new torture, they were threatened with sexual violence, some of the convicts were beaten again.
The complainants were placed in disciplinary isolation under fictitious pretexts. Some convicts were occasionally sent to another facility, where they were placed in a prison psychiatric hospital, intimidated by the fact that they could be turned into “vegetables” with drugs, but, thank God, this was not done, and the convicts were simply held in a psychiatric hospital without any treatment, then returned to OCC-25. The most resilient prisoners were “processed” throughout the detention period in order to obtain a waiver of complaints. At the same time, the administration threatened to initiate criminal proceedings for disorganizing the work of the institution, forcing other convicts to write that the complainants incited other convicts to group disobedience to the lawful demands of the administration. The convicts who were forced to write waivers of their allegations of torture, explained that they slandered the administration of the institution under pressure from human rights lawyers. Some of these waivers took place immediately before the interrogation of these convicts as victims, which took place on the territory of OCC-25, which was the result of their intimidation by the administration of the institution immediately before the interrogation.
One of the convicts suffered a micro-stroke as a result of constant pressure from the colony administration, in connection with which the lawyer applied to the ECtHR under Rule 39 of the Court on the application of interim security measures.
Until the end of January, RRG fighters were in the colony, in their presence any objections to the actions of the colony staff, and even more so complaints, were ruthlessly stopped. According to the convicts, on February 4, 2020, the administration of the colony gathered all the convicts who filed complaints and said that they give the convicts two days to withdraw their allegations of crimes and waive legal aid of lawyers, explaining that lawyers forced and incited them to denounce the penitentiary administration, otherwise they will face brutal execution. Due to pressure from the administration, most of the convicts withdrew their complaints (and dozens of those who wanted to file them on January 3, 2020, did not file them). In particular, the one who suffered the most from the administration’s actions and whose torture was mentioned in a special program on one of the central TV channels was under the greatest pressure, as a result of which the victim refused to conduct a forensic examination when the investigators finally organized it three weeks after the start of the investigation.
In total, KHPG lawyers received allegations of various crimes committed by the OCC-25 administration from 37 convicts, 17 applicants were tortured before the events of 8 January, 23 applicants were beaten when special forces entered on 8 January, and 2 later on 18 and 29 January. They were beaten, forced to write a statement withdrawing their past complaints of torture and other offences, and to refuse legal assistance. On February 3, convict K., who was beaten on January 29, was beaten for the third time. Twenty-two convicts continued to support their statements about the crimes, and five of them stated about coercion to withdraw their statements and refuse legal aid. After their release, the three returned to support their statements.
Looking ahead, this pressure continued after some convicts were transferred from OCC-25 to other institutions, as well as during and after release from prison. In particular, after his release, one of the convicts was put in a car, escorted to the station, bought a train ticket and his boarding was supervised - a separate statement about the crime was also filed. Another convict said after his release that before his release he was taken to the office of the head of the institution and forced to say under a video recording that earlier in the interrogation report he wrote that he refused to testify because his lawyer had taught him so. And he wrote the statement about the crime concerning this pressure at his release. Another former OCC-25 prisoner said that the same colony head had threatened to detain him after his release and falsify new criminal proceedings against him. The victim wrote a statement to the prosecutor's office after his transfer to another institution.
Several of the convicts resumed their complaints after their withdrawal after release, adding statements of coercion to refuse to testify.
Another victim of the Oleksiivska correctional colony who was prosecuted again after his release and placed in the Kharkiv pre-trial detention centre, complained that he was pressured by representatives of the institution’s administration, both directly and through other prisoners hostile to him. He was transferred from cell to cell, there were frequent searches of cells, he was placed in solitary confinement under a fictitious pretext, and not even treated, although this duty was established by a court, as he repeatedly complained to the prosecutor’s office.
Obstruction of the professional activity of lawyers
Regarding the use of physical violence and intimidation of victims and witnesses in criminal proceedings, lawyers representing the convicts in criminal proceedings filed separate statements of criminal offence for each such convict, but there was no reaction from the investigating authorities. In turn, the administration of OCC-25, which was very dissatisfied with the actions of lawyers representing the victims, drew up a falsified report on an administrative offence against one of the lawyers who allegedly brought money into the institution (which is prohibited by law). More details on that here. Another lawyer was complained on to the Qualification and Disciplinary Commission of the Bar for trying to obtain a meeting with the convict allegedly without the authority (contract, certificate and lawyer’s identification). In both cases, unlike the cases when lawyers filed applications/complaints about unlawful actions of the penitentiary administration, lawyers had to write explanations and participate in appropriate procedures to prove the absence of violations on their part.
At the beginning of the pre-trial investigation, representatives of the administration obstructed investigative actions on the territory of OCC-25, intimidated convicts, entered the interrogation room before interrogations, and threatened the interrogated persons, filmed the investigator and even banned him from conducting interrogations, and after their expulsion from the room on the complaint of a lawyer, eavesdropped on the door, knocked on the door, etc. All this took place in the absence of objections from the SBI investigator who conducted the interrogation. After the interrogations, the investigator did not leave the institution with his lawyer, but went to the OCC-25 administration, which is hardly a sign of his impartiality in conducting the investigation.
Forensic experts examined the victims in the colony, photographing the injuries of the convicts with the help of personal mobile phones. Accordingly, the administration of the institution knew exactly who was being examined and what they were complaining about.
Unlawfulness of the search conducted by RRG
The key circumstance that needed to be established for an effective investigation is the time of the so-called “general search”– before the wake-up call provided by the day’s agenda (06:00 am), which all convicts insisted on, or after, as recorded. in all documents of OCC-25 and as testified by all representatives of the penitentiary administration.
This circumstance could have been unambiguously established with the help of video recordings, but at the time of the arrival of special forces in OCC-25, the video surveillance system was turned off due to alleged failure in the power supply system. The lawyers of the victims drew the attention of investigators to the fact that the situation with the failure of the video surveillance system is impossible, because the power supply of this system involves double redundancy, and in any situation the video surveillance system will have the necessary power. Lawyers suggested to seize the recordings from the CCTV cameras, as well as from the portable video recorders used during the events of January 8, 2020 in OCC-25, but no action was taken to establish the circumstances of the CCTV system malfunction. Also, a portable video recorder was issued for each group of fighters when RRG was used, but the video materials do not contain video recordings made with the help of these technical means.
Another circumstance that is an indisputable proof of the unlawfulness of the entry of RRG on the territory of OCC-25 on the morning of January 8, 2020 (even at 06-00, according to the administration) is that the Administration of the State Criminal Executive Service of Ukraine (Kyiv) agreed with the decision of the head of the interregional department to apply RRG only after they entered the colony, as there were public holidays from 4 to 7 January and the central staff of the SCES was not working. But this circumstance was not taken into account by the pre-trial investigation body.
Actions of the defence
Realizing that an effective investigation is not conducted, but only imitated, at the end of January 2021 one of the victims’ lawyers addressed an open letter to the President of Ukraine, the Prosecutor General of Ukraine, the Commissioner of the Verkhovna Rada of Ukraine and other heads of state authorities with a request to take measures for an effective investigation. These appeals had no results, they were all forwarded to the investigating authority. The Kharkiv Human Rights Protection Group also appealed to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
In early February 2020, lawyers were given the opportunity to review the materials of the criminal proceedings for the first time, during which it became clear that the investigative actions were not aimed at obtaining evidence of guilt of the administration and bringing them to justice, but to create an impression of activity in the investigation.
On February 6, the KHPG addressed the Minister of Justice of Ukraine Denys Malyuska, the Deputy Minister of Justice VitaliyVasylyk, the Head of the Administration of the SCES of Ukraine Vasyl Korobko, Acting Chairman of the SBI of Ukraine Iryna Venediktova, Prosecutor General of Ukraine Ruslan Ryaboshapka, with an open appeal, where it stated, in particular: “We look forward for the Ministry of Justice of Ukraine taking decisive action against illegal practices in OCC-25 and other penitentiaries, providing security measures for victims and effective investigation of crimes by SBI and procedural guidance in the Prosecutor General’s Office, and overseeing the legality and prevention of new crimes by the prosecutor's offices”.
On 10 February 2020, SLC lawyers lodged a complaint with the ECtHR on behalf of six convicts alleging a violation of Article 3 of the Convention, which was subsequently lodged on behalf of another convict.
At the end of March 2020, lawyers filed a series of requests for investigative actions, which could be used to obtain evidence of violations of the law by the administration of the colony, demanding to do so in the presence of lawyers. These requests were granted, but no investigative action was taken.
Since the beginning of April 2020, quarantine due to the COVID-19 epidemic was introduced in Ukraine, which created additional problems with visiting colonies, communicating with investigative bodies, etc.
During the summer and autumn of 2020, the lawyers of the victims filed numerous requests for investigative actions to the investigative bodies: with numerous requests for psychological examination of the victims, reconstructions with the participation of victims, etc., but none of them were conducted. Also, SBI investigators did not want to include in the URPI the information about torture, which was contained in several statements of convicts from OCC-25 who did not submit such statements on January 3, 2020. Such information was entered by investigators only on the orders of investigating judges, which were contained in their rulings issued on the basis of the lawyers’ complaints about the inaction of investigators. However, no forensic medical examination was carried out with such convicts.
In August, a delegation of the CPT visited OCC as part of an ad hoc visit, members of the delegation spoke to the convicts of the colony, who confirmed the facts of torture, as they had previously filed allegations of crime. CPT compiled a report after the results of the visit to OCC-25 and two other penitentiaries, which was directed to the Government of Ukraine. It is noteworthy that the Ukraini8an Government in its response to CPT’s report did not acknowledge the existence of a systemic problemof the use of tortures and other kinds of ill-treatmentin Ukrainian penitentiary institutions, stating that it was unreliable information distributed by human rights activists.
Only after the CPT delegation's visit did the SBI investigators conduct several interrogations of the victims, which in the interests of the investigation had to be carried out as soon as allegations of torture were received by the investigating authority. However, the investigators’reconstructions involving victims, suggested by the lawyers, which were used to establish the exact locations of the tortures, the equipment of these premises and, presumably, the instruments of torture and their traces, were not carried out with any of the victims.
As the investigative bodies did not conduct even basic investigative actions, in February 2021 one of the lawyers sent a complaint to the Department of the Prosecutor General’s Office, whose prosecutors were appointed to oversee the pre-trial investigation into the torture of OCC-25 convicts, a complaint of violation of reasonable time of pre-trial investigation, to which the answer was given that SBI investigators are taking all necessary measures to conduct the investigation.
In July 2021, after repeated requests from the lawyer of a former convict from OCC-25 who suffered the most severe torture, he was interrogated using a polygraph. However, the lawyer was not informed about the planned investigation, and when she found out about it and arrived at the place of the investigation, she was denied presence during the interrogation, and even in her presence the victim was pressured, saying that he lies, the polygraph would show it, etc. A forensic examination of one of the victims was also carried out, without examining the victim, on the basis of documents. Thus, some of the victims did not undergo forensic examinations or they were conducted on the basis of documents.
Closure of the criminal proceedings
As it became known only in December, on October 19, 2021, SBI investigators closed the criminal proceedings initiated on the fact of the events in OCC-25 on January 8, 2020, on the grounds that no person was notified of suspicion during the pre-trial investigation. The investigators did not inform the victims or their lawyers about this decision.
On November 25, 2021, having no information about the closure of criminal proceedings, one of the victims’ lawyers filed a complaint with the Prosecutor General of Ukraine.
On December 6, 2021, the head of the Prosecutor General’s Office, whose prosecutors oversaw compliance with the law during the pre-trial investigation, responded to the lawyer’s complaint providing the information about the closure of the criminal proceedings, at the same time referring to the fact that he was not able to check the lawfulness of this decision of the investigator, as the Office did not receive a copy of the decision to close the proceedings. It is simply striking that the case that was heard in the Verkhovna Rada Committee, on which an appeal was filed to international human rights bodies, a delegation of the European Committee for the Prevention of Torture visited Ukraine, was closed even without the procedural requirements of sending a copy of the resolution on closure of the proceedings to the prosecutor, not to mention the victims or their lawyers. It is not difficult to imagine how the the Prosecutor General’s Office prosecutors “supervised the pre-trial investigation” or “verified the lawfulness of the decision”, if the letter of December 6, 2021 states that the prosecutor “has not received this decision so far”. In addition, it seems that notifying the prosecutor of the closure of the proceedings was not carried out by sending a copy of the decision, but in another way, which in any case is out of the process.
If the criminal proceedings are closed on the grounds that the term of the pre-trial investigation in the proceedings in which no person has been notified of the suspicion has expired, then there are objectively no grounds for its termination. Simply put, the investigative body headed by the prosecutors from the Prosecutor General’s Office, by its inaction, prolonged the investigation until the deadline set by the CPC of Ukraine expired.
After receiving a copy of the decision to close the criminal proceedings, the lawyers plan to appeal against it to the court. Given that the employees of the penitentiary system, whose unlawful violence was complained of by the convicts of Oleksiivska Colony No.25, went unpunished and the victims did not receive any compensation for their physical and moral suffering, there is reason to believe that the inaction of SBI investigators and prosecutors from the Prosecutor General’s Office has signs of the criminal offence provided by Art. 367 of the Criminal code of Ukraine - official negligence. It is also possible to raise the issue of abuse of office by investigators and prosecutors, who, according to lawyers, could not help but understand the urgent need to investigate procedural actions, in particular those proposed by the victims’ lawyers, and therefore such inaction can be considered intentional. Therefore, after receiving a copy of the decision to close the criminal proceedings, the lawyers plan to file an application about such a criminal offence committed by the SBI investigators and prosecutors from the PGO with the Prosecutor General’s Office.
After receiving information about the closure of the pre-trial investigation, the Kharkiv Human Rights Protection Group informed the CPT about the circumstances of the investigation and the closure of the criminal proceedings concerning the events in OCC-25. In response to this, the CPT Secretariat announced that during the next periodic visit to Ukraine, the CPT delegation would study the issue.
It also seems appropriate to hold a joint meeting of the Parliamentary Committees on Law Enforcement and Human Rights with the participation of the Parliamentary Commissioner for Human Rights on this issue, as well as to organize and hold a round table with interested media with representatives of the State Bureau of Investigation and the Prosecutor General’s Office, for them to answer a number of questions: in particular, how did it happen that dozens of convicts mentioned the name of the same person G. from among the staff of the colony as a person who was directly involved in torture, but he was not even brought to criminal responsibility; why investigators conducted a number of investigative actions that obviously could not provide evidence of a criminal offence, while none of the investigative actions suggested by the victims’ lawyers, except for the interrogation of one of the victims using a polygraph, was conducted, and others.