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

Ukraine’s penitentiary institutions and the war

04.11.2022    available: Українською
Mykhailo Romanov

Херсонський слідчий ізолятор, фото: УНІАН Kherson Interrogation & Detention Centre (SIZO). Photo, UNIAN

Kherson Interrogation & Detention Centre (SIZO). Photo, UNIAN

With the onset of Russia’s all-out war against Ukraine some of the country’s most vulnerable institutions, its detention centres and corrective colonies, found themselves in a precarious position. This article examines the past and present situation of Ukraine’s penitentiary system and recommends legal and practical measures for its greater safety.

Sources of Vulnerability

The country’s penitentiary institutions fall into two broad categories: [a] the investigation & detention centres (SIZO) where those awaiting trial are held, preventive custody being the preferred measure of restraint; and [b] the corrective colonies (colonies) where those convicted of committing crimes serve their sentences.

Experience has shown that such institutions are indeed vulnerable, and not merely because of the present war. Specialized bodies intended to exert a legal influence over individuals, they have been given the exclusive right to carry out such functions. They have no economic “value”, and their funding has never been a priority for the State. In peacetime, the vulnerability of Ukraine’s detention centres and colonies is often due to a lack of funding and provision, which affects their everyday life and operation.

There are enormous problems involved in maintaining the legal regime under which prisoners serve their sentences. Violations of human rights are common in Ukraine’s detention centres and colonies.

The activities of both types of institution depend, ultimately, on coercion by the State. That dependence makes the country’s detention centres and colonies particularly vulnerable to external factors.

After 24 February 2022

The imposition of martial law in Ukraine raised this level of vulnerability. Some penitentiary institutions were located in an area of active hostilities, on the frontline; all the risks to the rest of society at such times were amplified for detention centres and corrective colonies

Such institutions operate according to certain rules and regulations. Their staff cannot quickly and easily transfer the prisoners in their charge to other locations nor can they rapidly organise their evacuation. Such actions require equipment, personnel and time.

The same applies to the physical protection of such installations and the security of those detained or imprisoned there. Inmates could not be sent home, for instance, because they have been imprisoned as a punishment for their crimes. There was a high risk of detention centres and colonies being shelled by the enemy. If they were hit, they were mentioned last on any list of damaged buildings.

Penitentiary institutions might also be occupied by the enemy. This risk was particularly great since the army of the Russian Federation did not acknowledge existing international norms or the rules of war. Under occupation, states the basic rule, detention centres and colonies should be able to function normally and cannot be drawn into a military conflict. The present war shows that the reverse has been happening.

The inmates of Ukraine’s detention centres and colonies are, by definition, people who cannot take independent decisions. They cannot select a type of behaviour appropriate to the situation. They cannot independently leave the institution and change, at will, their place of residence. They cannot react promptly to decisions or actions which, in their opinion, violate their rights or create a risk that they may be violated.

The above-listed circumstances mean that Ukraine’s detention centres and colonies require particular attention: in a crisis such as the present conflict specific actions should be prescribed in response.

Ukraine’s Experience since 2014

In spring 2014, when Russia’s military aggression against Ukraine began, a great many detention centres and colonies found themselves in difficulties. Some were occupied, some were located in areas of ongoing hostilities.

There are no accessible data in official sources about penitentiary institutions presently in the occupied and annexed territories. Journalists and human rights activists have published their own studies. According to data compiled by the Kharkiv Human Rights Protection Group (KHPG), 36 detention centres and colonies were located in the Donetsk and Luhansk Regions, making up a quarter of the 148 institutions managed by the Ukrainian Penitentiary Service [literally the State Criminal Enforcement Service], a department within the Ministry of Justice. Of that total a further 29 are in areas of probable military conflict or in territory not controlled by Ukraine.

As of 2015, according to KHPG data, there were four such institutions in Crimea, all occupied since the territory was taken over by Russia (bracketed totals show how many prisoners or detainees each institution contained): Kerch No. 139, a corrective centre (30 prisoners); Kerch No. 126, a minimum-security corrective colony (710 prisoners); Simferopol No. 102, a medium-security corrective colony (1,470 prisoners); and the Simferopol SIZO or investigation & detention centre (1,700 detainees). There were 3,910 Ukrainian citizens, therefore, unable to make their own decisions about their forced relocation to mainland Ukraine.

Statistical reporting as of 1 January 2015, i.e., after the annexation of Crimea and the occupation of parts of the Donetsk and Luhansk Regions, shows an estimated decrease in the total population of detainees and prisoners of 30%. The number of inmates then registered in Ukraine’s penitentiary system was 73,431, down from an estimated 89,000 in 2014.

Almost all detention centres and colonies in the occupied areas of the Donetsk and Luhansk Regions or in the Crimea peninsula continued to exist. They were not evacuated but left in a state of some legal uncertainty. Efforts to secure the transfer of detainees and prisoners to Ukraine had some success. Looking at the numbers who returned, however, this was clearly a matter of chance: 12 came back from Crimea, 186 returned from the Occupied Territories of the Luhansk and Donetsk Regions.

In other words, the hostilities took Ukraine’s Penitentiary Service by surprise, as they did the Ministry of Justice and other State institutions responsible for the proper functioning and security of the country’s penitentiary system.

During the entire period of the Anti-Terrorist Operation (ATO), 2014-2018, the only evacuated prisoners came from the “Red Female Partisan” (Chervonopartizanska) Corrective Colony No. 68 for women in the Luhansk Region.

Not until 2018, after hostilities had continued for four years, were official instructions issued that regulated, to some extent, the evacuation and safety of detention centres and colonies, their staff and inmates. Resolution No. 934 (7 November 2018) of the Ukrainian Cabinet of Ministers approved a procedure for the “mandatory evacuation of certain categories of the population when martial law is introduced”.

The Procedure defines the mechanism of mandatory evacuation after the introduction of martial law for detainees, suspects, accused and convicted individuals. It covered

  • Detainees still awaiting trial for whom preventive custody was the chosen measure of restraint; military prisoners detained as a form of punishment; and those deprived of their liberty for a certain term or for life, i.e., prisoners (hereinafter ‘Detainees and Prisoners’).
  • They were variously held in temporary detention facilities, pre-trial detention centres, detention centres and corrective colonies, guardhouses and disciplinary battalions;
  • The Procedure also covered individuals in the special wards of health institutions and the temporary detention quarters for members of the Armed Forces (hereinafter included under ‘Penitentiary Institutions’);
  • The above-mentioned were to be moved from penitentiary institutions near the area of hostilities to institutions in a safe area providing pre-trial detention or enabling prisoners to continue serving their sentences.

An examination of the November 2018 Procedure reveals that while it declared its intentions it did not specify, unfortunately, how they might be achieved.

There lacked an imperative and operational sequence of coordinated actions. This would require cooperation between various law-enforcement agencies and a clear specification of the resources needed for a prompt and efficient evacuation. Yet the Procedure simply declared in the most general terms that evacuation should take place; it must be implemented, said the Procedure, according to a separate plan.

***

PART ONE

In 2022, the State Penitentiary Service was confronted by the occupation of yet more of its detention centres and corrective colonies.

After 24 February 2022, Minister of Justice Denys Maliuska later reported, ten detention centres and colonies were evacuated from the frontline and the area of active hostilities. The evacuation failed to cover all penitentiary institutions at risk. Furthermore, the Minister did not specify which institutions had been evacuated.

Provision for the Safety of Citizens, Prisoners, Society and the State

Oleg Tsvilyi, head of the Alliance of Ukrainian Unity NGO (Alyans Ukrayinskoyi Yednosti), gave the names of nine corrective colonies and one detention centre to the Zmina news agency – the Alliance is a member of the Ministry’s Public Relations Council and focuses on the rights of the prisoners:

  • Orkhivka Corrective Colony (No. 88);
  • Vilnyansk Corrective Colony (No. 20);
  • Vilnyansk penitentiary institution (No. 11);
  • Sofiivka Corrective Colony (No. 55;
  • Selydiv Corrective Colony (No. 82);
  • Toretsk Corrective Colony (No. 2);
  • Kholodnogirska Corrective Colony (No. 18);
  • Pokrovska Corrective Colony (No. 17);
  • Khroliv Corrective Colony (No. 140);
  • Investigation & Detention Centre (SIZO) No. 6 in Bakhmut.

The above-mentioned institutions were all initially located in the Donetsk, Luhansk, Zaporizhzhia or Kharkiv Regions.

Ongoing hostilities meanwhile created and continues to create danger for many more penitentiary institutions, for their inmates and staff. About thirty of Ukraine’s penitentiary institutions were destroyed or damaged, killing and injuring both staff and inmates.

As a result of the present war, rights activists have estimated, about three thousand people in detention centres and colonies were temporarily located beyond the control of the Ukrainian authorities. This was confirmed by Olena Vysotska, deputy minister with responsibility for penal enforcement and probation at the Ministry of Justice. According to the latest data, she noted, about three thousand people were in places of detention in the temporarily occupied territories. Representatives of the Red Cross were mandated to visit such institutions without hindrance. The forces of the Occupying Power have interfered with the running of most of these institutions although some continue to operate in accordance with Ukrainian legislation and contact with them is maintained.

Concerning their evacuation, Vysotska notes that the evacuated detention centres and colonies were located close to the frontline and the military and civil administration approved their evacuation. It was difficult to move other institutions, with their staff and inmates, because the decision was entrusted not just to the Ministry of Justice, but to be shared with other bodies, as well. Such joint decision-making slowed the process of evacuation.

Penitentiary institutions in areas captured during the first two days of the Russian invasion remain under occupation today. At the time, it was neither technically nor legally possible to guarantee their safe evacuation.

Issuing a statement about the situation in detention centres and colonies in the temporarily occupied territories, the State Penitentiary Service said that things were especially complicated for those which had been occupied for a long time by the enemy.

After martial law was imposed, the Penitentiary Service decided to ration its resources and food and to minimize situations that required the involvement of staff outside their institutions.

According to the military command, it was impossible to evacuate the detainees and prisoners in some territories. The detention centres and colonies focused instead on continuing to operate under in the new circumstances.

The staff of penitentiary institutions in the temporarily occupied territories supported the Ukrainian authorities and maintained contact with the Ukrainian government in the hopes of liberation or other circumstances that would enable them to evacuate their detainees and prisoners.

This remained a possibility until the invaders began to force a change of management in the detention centres and colonies.

Take the Kherson Region, for example. Enemy occupation of its penitentiary institutions was followed by intimidation of the staff and the use of violence to compel collaboration with the occupying forces. We shall not comment on the actions of particular detention centre and colony officials in the Kherson Region until a Ukrainian court has assessed them. We simply note that the Russian Federation took control of institutions formerly answerable to the State Penitentiary Service.

Херсонський слідчий ізолятор Kherson Interrogation & Detention Centre (SIZO)

Kherson Interrogation & Detention Centre (SIZO)

When the Ukrainian government lost control over some penitentiary institutions this put their staff at risk of collaborating with the enemy, an activity covered by Article 111, pt. 1, of the Criminal Code (High Treason). To protect them from this danger the Minister of Justice ordered the staff of detention centres and corrective colonies to stop work as of 14 May 2022: they could not continue functioning due to force majeure (or other circumstances). The order would remain in effect for those penitentiary institutions in the occupied territories until martial law was revoked.

This measure was intended to protect staff for the period of their temporary occupation. It offered them payment of downtime at two-thirds of the official salary; it also allowed staff at detention centres and colonies to leave their workplace and, accordingly, not comply with instructions from the Occupying Power. This guaranteed the labour rights of staff at penitentiary institutions in the temporarily occupied territories and prevented their interaction with illegal representatives of the occupation regime.

The Ministry of Justice and Penitentiary Service said they had not abandoned detention centres and colonies in the temporarily occupied territories. They were prepared to facilitate their evacuation if conditions guaranteed the safety of detainees and prisoners, and they would accommodate all inmates on territory controlled by the Ukrainian government. The staff of penitentiary institutions who left the temporarily occupied territories would receive all the legal support available under martial law.

Was it proper, however, for the staff of detention centres and colonies to ignore the orders of the occupying forces and not go to work while their inmates, who could not take independent decisions, were left to face enemy troops on their own? Even the adoption of laws that permitted prisoners to resist Russia’s troops and defend Ukraine were insufficient, we believe: see the 3 March 2022 law “On ensuring the participation of civilians in the defence of Ukraine” (№ 2114-IX) and the 15 March 2022 law “On amending the Criminal Code of Ukraine and other legislative acts regarding the circumstances that exclude criminal illegality of an act and provide combat immunity in the conditions of martial law” (No. 2124-IX). These legislative acts did not permit detainees and prisoners to exercise free will, and without that freedom they could neither adopt nor implement decisions on their own.

The war added two major problems to those already facing the penal system:

  • The occupation of detention centres and colonies and provision for the health and safety of both staff and inmates;
  • respect for the rights of detainees and prisoners under martial law, both those evacuated and inmates who remained in areas and conditions of relative safety.

Detention Centres and Colonies under Enemy Occupation

Occupation, according to the standard definition and understanding, is the taking of all or part of one State by the armed forces of another without acquiring sovereign rights to the territory so occupied. At the time of writing, up to 30% of Ukraine was occupied (in part annexed) by the armed forces of the Russian Federation.

The legal regime of occupation has been defined in international law and imposes certain obligations on the occupying State. Russia has not respected those obligations, however. Our review focuses, in particular, on the detention centres and colonies on the occupied territories, which are functioning with difficulty.

In most cases, unfortunately, communication with the penitentiary institutions under occupation was either lacking or faced significant complications. Information about conditions in those institutions, therefore, was collected and processed from open sources. Sometimes the information was hard to verify. Experience showed that in most cases the information had some basis in fact and was later confirmed.

The attitude of Russian troops towards detention centres and colonies was not uniform, commented Olena Vysotska of the Ministry of Justice. Sometimes the occupiers entered the institution, forcing the administration to cooperate and intimidating the inmates; in other areas the Ukrainian legal regime continued to operate. The situation varied.

Some observers believed that detainees and prisoners were in danger of becoming involved in hostilities in the temporarily occupied territories. Such concerns were also voiced at the Ministry of Justice. The danger truly existed, and it worried the inmates, their relatives and the staff of those institutions. At the time of writing, there have been no confirmed incidents of the military training of inmates or their release for such purposes.

Another problem was that of collaboration between the management of penitentiary institutions and the occupation authorities (or armed forces). In May 2022, the Ukrainian Prosecutor General’s Office posted information about collaboration between the head of a penitentiary institution in the Kherson Region and the occupation authorities. He allowed the occupiers to live at the colony and receive medical treatment there. Under the guidance of the Kherson Regional Prosecutor's Office, he was notified in absentia that he was suspected under martial law of committing “High Treason” (Article 111, pt. 1, Criminal Code).

The suspect issued orders that Russia’s armed forces should be given free access to the colony, the investigation alleged. He also allegedly helped the occupying forces by ordering detainees and prisoners to repair enemy equipment. Using official connections, the head of the colony encouraged other Kherson Region officials to collaborate with the occupying forces and Russia’s special services. The pre-trial investigation of this case is ongoing.

Treasonable acts by some penitentiary institution staff members were also recorded by Ukraine’s law-enforcement agencies. The inspector of the Starobilsk SIZO (Luhansk Region) is suspected of treason; criminal proceedings have been initiated against him.

The State Bureau of Investigation reported the deputy head of a colony in the Donetsk Region whom they suspected of treason.

Another problem faced by detention centres and colonies in the occupied territories, in addition to the fate of the individuals held there, was that of damage to their buildings and violation of their territorial integrity. Information was gathered about damage to buildings and acts of violence against the detainees and prisoners.

Some examples.

The Intelligence Directorate of Ukraine’s Ministry of Defence announced that the occupying forces had transferred to the city of Kherson all prisoners and staff from Corrective Colony No. 10 in the temporarily occupied village of Darivka (Kherson Region). They were reallocated to Corrective Colonies No. 7 (Hola Prystan) and No. 90 (Kherson). The occupation forces billeted their soldiers and officers in the buildings of former colony No. 10 while military vehicles were parked in its grounds.

Formerly 13 prisoners were held at Primorska Corrective Colony No. 145 (former Berdiansk Corrective Colony, No. 77), said the Ukrainian Penitentiary Service; their present fate was unknown. According to available information, the occupation forces in temporarily occupied Berdiansk used the premises to hold protesting civilians, public volunteers, entrepreneurs, local government staff and Ukrainian POWs that they had arrested.

Data from open sources, which could not unfortunately be verified, indicated that contact had been lost with the Pryazovska Corrective Colony for women (No. 107). The inmates had been moved, either to the Crimea or to Russia.

The Russian military released Andriy Kosyak, an inmate of Starobilsk SIZO (detention centre). He had been held there for six months, charged with “Creation of an unlawful paramilitary formation” and “wilfully changing the national borders of Ukraine” (Articles 260 and 110, Criminal Code). The Luhansk Regional Prosecutor's Office then began a pre-trial investigation of this event as “escape from custody” and the “capture of a government building” (Articles 393, pt. 2, and 341, Criminal Code).

A while later Starobilsk SIZO was occupied by armed pro-Russian militants. Threatening violence with automatic firearms, they forced the staff to leave the detention centre. At the time of writing, prosecutors of the Luhansk Regional Prosecutor's Office had instituted criminal proceedings concerning the “capture of a government building” (Article 341, Criminal Code).

Violence against Detainees and Prisoners in the Occupied Territories;
Violations of the Rights Of Inmates and Staff

As noted, the situation varied from one penitentiary institution to another in the occupied territories.

Relative order was maintained in some detention centres and colonies, and they continued to observe current legislation in Ukraine. In others the occupying forces interfered in the work of those institutions, but the administration managed to retain control. In yet other detention centres and colonies the situation was difficult. The occupying forces resorted to extortion and put pressure on the administration; they committed acts of violence against detainees and prisoners; they violated the institution’s operating procedures and the rights of those who were held or employed there; they took away detainees and prisoners and committed other violent acts of varying severity.

Some examples, mostly described in open sources, could not be confirmed by proper and acceptable proofs at the time of writing.

The most striking case of violence against detainees and prisoners was the murder of certain inmates of Ukraine’s penitentiary institutions. A critical humanitarian situation, for example, developed at the Mariupol SIZO (investigation & detention centre). There were problems with the supply of food, water and medicine, and the disposal of sewage. The SIZO’s management abandoned the institution, leaving only junior staff who, at the request of the inmates, opened the cells to let them breathe and share leftover food. When Kadyrov’s Chechen fighters entered the SIZO, they threw smoke grenades into the corridor and fired machine guns at the ceiling, forcing the detainees and prisoners back into their cells. One prisoner, the bravest of the inmates, tried to explain the gravity of their situation and appeal to the compassion of the invaders. He was shot dead.

Інформація з Маріупольського СІЗО Information from Mariupol SIZO

Information from Mariupol SIZO

On 11 May 2022, Petro Andryushchenko, adviser to the mayor of Mariupol, made the following announcement:

"All who failed to pass the filtration process and were recognized as ‘unreliable’ in the filtration colonies near Mariupol have been sent to former Corrective Colony No. 52 in the village of Olenivka (Donetsk Region, occupied since 2014) or to the well-known “Insulation” Prison in Donetsk. The colony in Olenivka is being used for those members of the Ukrainian Armed Forces, the National Guard and other law-enforcement agencies who were not on active duty. Local soldiers, former law-enforcement officers, activists, journalists and people who have simply aroused suspicion (patriotic tattoos) are being held there."

According to their "legislation", the occupying forces could prolong the filtration process for up to 36 days. This became the minimum term of imprisonment for Ukrainian citizens. Conditions of detention in the colony were inhumane, noted Andryushchenko:

"The prison is overcrowded. The colony was built to hold 850 but, according to witnesses, at least 3,000 people are detained there today. Most come from the city of Mariupol and the Mariupol district. The premises are so full that it is impossible to lie down. People have to stand or squat. One bucket of water is issued for dozens of people per day. Food is not handed out every 24 hours. Access to toilets only once a day. Walks outside are not permitted."

Interrogations lasted several hours. Detainees were threatened with execution and forced to cooperate. Witnesses spoke of torture. Some were released after 36 days, many simply disappeared. There was information that the missing were being transferred to another, tougher prison, perhaps the “Insulation” prison in Donetsk.

*

An incident at the Kherson SIZO was reported by multiple sources.

Ludmila Denysova, parliamentary Commissioner for Human Rights:

"Information in the media about the murder of a prisoner in the Kherson SIZO has been confirmed. The corrective colony’s staff report that on 11 May the invaders entered the institution, threw stun grenades into cells and opened fire with assault rifles. One prisoner was killed for expressing his outrage..."

The Prosecutor General’s Office:

"In Kherson, the enemy killed a prisoner in the SIZO. An investigation has been opened. Led by the Kherson Regional Prosecutor's Office, a pre-trial investigation is being conducted into ‘violation of the rules of war’, accompanied by murder” (Article 438, pt. 2, Criminal Code).

The investigation reported that on 11 May 2022, Russian servicemen together with the SIZO head, who is suspected of treason, made unreasonable use of firearms against detainees and prisoners held in the Kherson SIZO. One inmate was killed. Four other people were taken prisoner by Russian military personnel: they included the acting head of the SIZO and its chief of internal security.

The Chief Directorate of Intelligence (Ministry of Defence) reported that the enemy was torturing and kidnapping people in the Kherson Region. The head and first deputy of Hola Prystan Corrective Colony (No. 7) resigned, for example, not wanting to collaborate with the invaders.

On 11 May 2022, about 8.00 pm, the local administration drove up to the Kherson SIZO accompanied by seven Kamaz trucks filled with soldiers, four armoured personnel carriers and several “Tiger” tanks. Igor Guryakov, acting head of the SIZO, and the entire top brass removed all members of the detention centre’s administration and installed their men in the watchtowers. Then Russian soldiers entered and intimidated the remaining inhabitants, setting off grenades in one building, firing several rounds from machine guns, and taking several people away. One prisoner, according to witnesses, was shot dead in his cell with a machine gun.

Damage to Penitentiary Institutions and to Infrastructure

There are numerous cases when detention centres and colonies were damaged by enemy shelling. Such events were recorded at the Chernihiv SIZO, Bucha Corrective Colony (No. 85), Selydiv Corrective Colony (No. 82) and Kholodna Gora Corrective Colony (No. 18).

In addition, the following institutions came under artillery fire.

Oleksiivka Corrective Colony (No. 25) has been shelled at least three times since the war began; fencing, administrative and industrial buildings were damaged. According to preliminary data, there were no deaths; two members of staff were injured.

On 17 March 2022, the Khroliv Corrective Colony (No. 140) was attacked from the air. One prisoner died in hospital from his injuries. On 21 March 2022, the colony was evacuated.

On 25 March 2022, Pokrovska Corrective Colony No. 17 (a men's specialized tuberculosis hospital) came under sustained artillery fire. A partial evacuation took place. About fifty people were evacuated to the Zbarazka Corrective Colony No. 63 (women's specialized tuberculosis hospital). Some prisoners were injured.

Kharkiv Corrective Colony (No. 43) was shelled at least twice since the war began. Buildings were damaged but, according to preliminary data, there were no deaths.

Detention centres and colonies in areas of active hostilities or in the temporarily occupied territories faced the greatest problems, naturally, and could not be defended against such abuses. It was hard to enforce the observance of legal regimes in wartime and the mechanisms to protect human life were limited.

Unfortunately, our information shows that institutions and their inmates which remained in Ukraine or were evacuated to safer places faced similarly difficult and dangerous conditions.

***

PART TWO

The information we received and gathered leads us to conclude that in many cases the situation in detention centres and colonies controlled by Ukraine was unacceptable. We found violations of the rights of specific prisoner groups (their limitation and non-observance) and cases of violence and torture inflicted on both detainees and prisoners.

Penitentiary Institutions controlled by Ukraine,
including those Evacuated

Martial law in Ukraine led to the partial restriction of citizens’ rights. Similar restrictions affected detainees and prisoners. Such limitations must be justified, however, and bear some relation to the existing risks. It is all the more surprising, therefore, to find that limits were imposed on the right of detainees and prisoners to hold confidential meetings with their lawyers.

An inspection by the Prosecutor General's Office found violations of national and international legislation concerning the activities of pre-trial detention centres.

The Alliance of Ukrainian Unity made a public appeal to the Penitentiary Service and the management of those penitentiary institutions, requesting that long-term and short-term visits be allowed to institutions in the territories where hostilities were still ongoing.

Human rights organizations received numerous complaints from inmates of the use of physical force, beating and torture by the State Security Service (SBU) and the staff of institutions entrusted with the evacuation, transportation and transfer of detainees and prisoners. The following information comes from our colleagues at the Alliance of Ukrainian Unity.

On 14-15 March 2022, prisoners from Orikhiv Corrective Colony (No. 88), were evacuated to the Kropyvnytskyi Corrective Colony (No. 6) in central Ukraine (the Kirovohrad Region). Armed units of the National Guard organised the convoy of prisoners in accordance with Order № 1090 (24 December 2019) of the Ministry for Internal Affairs. When they were under escort in special prison trucks, prisoners said, the National Guardsmen fired shots in the air and applied physical coercion, causing injuries.

On 16 March 2022, the prisoners arrived at the Kropyvnytskyi Corrective Colony. One prisoner said that when his fellow inmates were vacating the vehicles under the orders of the colony staff, they saw fully-equipped and masked members of the Rapid Response Group waiting for them. They stood in two lines, creating a “corridor” through which the prisoners had to pass, running one by one. From the moment they entered the corridor the prisoners were beaten and shoved; one person fell to the ground, and Rapid Response Group members continued to kick him and hit him with rubber truncheons. Everyone was beaten. Some were undressed, bound with duct tape, and threatened with rape; some were luckier, some less. During the beating some of the prisoners’ belongings, including their tablets [I-Pads], were taken from them. They were then forced to squat for three hours, although some prisoners were disabled, others were elderly, or in need of medical assistance due to their previous mistreatment. Then they were searched and allocated to various units.

Сліди побиття у в’язня Кропивницької ВК-6. Фото: Сергій Зуйков Traces of beating on the prisoner of Kropyvnytskyi Corrective Colony (No. 6). Photo, Serhiy Zuykov

Traces of beating on the prisoner of Kropyvnytskyi Corrective Colony No. 6. Photo, Serhiy Zuykov

On 16 March, it was reported that prisoners were being beaten and tortured during their reception at the Kropyvnytskyi Corrective Colony (No. 6). 399 newly-arrived prisoners were brutally beaten. Their screams were heard even outside the colony. After the beating their belongings were seized. Many prisoners were placed in disciplinary isolation for no reason. A representative of the Human Rights Commissioner and Serhiy Zuykov, an assistant to people’s deputy Kostyantyn Kasai, recorded the crimes and sent their findings to the Prosecutor General’s Office. Only a few of the prisoners agreed to testify, however, due to pressure from the head of the colony.

During evacuation from Selydiv Corrective Colony (No. 82) on 14 March 2022, prisoners said, soldiers of the National Guard used physical force on some of them when they were being loaded into the prison trucks.

The Alliance of Ukrainian Unity was informed by relatives of the detainees and prisoners that on 6 April 2022 they heard shouts near the Kropyvnytskyi SIZO, as if someone was being beaten. During a monitoring visit the following circumstances became known. On 5 March 2022, detainees and prisoners were evacuated from Vilnyansk Corrective Colony (No. 11). On 6 April 2022, 141 detainees and prisoners arrived at the Kropyvnytskyi SIZO in special vehicles. During its visit, the monitoring group spoke confidentially with 40 prisoners. The inmates complained about the unlawful behaviour of the colony staff and its medical employees. This included cruel, inhuman or degrading treatment and punishment: after their arrival at the SIZO, for example, detainees and prisoners said that detention centre staff used physical coercion, threatened them with violence and mocked them. In particular, centre staff and members of the Rapid Response Group stood in two lines forming a “corridor” through which the recently-arrived detainees and prisoners had to run, while staff shouted at them, threatened them and sometimes hit them. The detainees and prisoners also heard the screams of inmates being subjected to physical violence. They could not see what was happening, however: they were forbidden to move, look round, or raise their heads without being ordered to do so.

One prisoner explained that he was severely disabled (first category). When a medical examination was taking place, he was approached by a man who asked, "Who’s disabled here?" and punched him in the chest. The prisoner mentioned this incident in his appeal to the parliamentary Commissioner on Human Rights. A response appeared on the Commissioner’s site that the report about the beating had not been confirmed.

Побиття в’язнів у ДУ “Полицька виправна колонія №76” Traces of beating on the prisoner of Polytsk Corrective Colony No. 76

Traces of beating on the prisoner of Polytsk Corrective Colony No. 76

Unfortunately, such cases cannot always be verified, especially under conditions of martial law. Some of the information was not confirmed; some was concealed both by Penitentiary Service staff and by detainees and prisoners. Certain inmates later waived some of the statements they had made: they did not want to enter into a conflict with the administration, which had them fully under its control.

The repetition and mass nature of such evidence, however, led us to conclude that violations were occurring.

Detainees and Prisoners who joined Ukrainian armed formations

There were many instances when detainees and prisoners expressed a desire to join the defence of Ukraine. Understanding the value of such actions, and recognising the need to regulate similar situations, Ukraine’s legislators passed amendments to the Criminal-Procedural Code (“On amending the Ukrainian Criminal-Procedural Code to allow for release from preventive custody to enable military service during mobilization for a specific period or its replacement for other reasons”, law of 15 March 2022).

Some prisoners have already taken advantage of that amendment. An example widely reported in the media was the release from custody in Rivne of two men: 31-year-old Vitaly Gonchar, a machine-gunner with combat experience during the Anti-Terrorist Operation (2014-2018); and 39-year-old Serhiy Shmorgun, a company foreman and former midshipman with the Coast Guard. Both were accused of a robbery in Volyn, northwest Ukraine. This was reported by the press service of the Rivne Court of Appeal. The Court reviewed appeals submitted to the prosecutor by the accused Vitaly Gonchar and his defence counsel, and by the defence counsels of the accused Serhiy Shmorgun and Grygoriy Radutny, against the 29 May 2020 judgment of the Lutsk City Court. That day the court in Lutsk found the men guilty of committing robbery and sentenced them, respectively, to eight years (Grygoriy Radutny) and to seven years and six months (Vitaly Gonchar, Serhiy Shmorgun) imprisonment.

The accused and their defenders asked for the application of Article 69 (“Mitigating circumstances”, Criminal Code) and their release from custody in order to fight the Russian invaders. In his last words to the Rivne Appeal Court, Vitaly Gonchar said:

"I’m a bad criminal, but a very good soldier and know how to use all kinds of small arms. Let me join the ranks of Ukraine’s Armed Forces and defend the country’s territorial integrity."

After considering all the circumstances the Appeal Court reached what it considered a fair decision. The panel of judges rejected the appeal of the prosecutor and defence attorney of Grygoriy Radutny. They granted, in part, the appeals of Vitaly Gonchar and his defence attorney, and of the defence attorney of Serhiy Shmorgun.

The contested court decision had not yet entered into force. The military experience of Gonchar and Shmorgun was in demand in the area of active hostilities. The Court of Appeal applied the norms of Article 69 to the defendants and imposed a sentence lower than the minimum established by part 3 of Article 187 (“Robbery with violence”, Criminal Code): three years and seven months.

The Court released Vitaly Gonchar, then in the Manevytsia Corrective Colony, and Serhiy Shmorgun, then in the Lutsk SIZO, from custody.

In addition to the amended law regarding release from custody, Ukraine actively applied an amnesty for prisoners with military experience who had previously submitted an appeal and expressed a desire to defend the country. As of 5 May 2022, said the Ministry of Justice, the President of Ukraine had pardoned 363 prisoners who were serving short sentences in Corrective Colonies and had not been convicted of violent crimes.

During the first four months of the war, there were examples of detainees and prisoners participating in the defence of Ukraine. One was provided by the Mensk Corrective Colony (No. 91), an institution where former law-enforcement officers, military personnel and other erstwhile government employees were serving their sentences.

The administration of the colony acknowledged that all its prisoners could be classified, in one way or another, as a high-risk group due to their professional background, and allowed those volunteering to defend the motherland to freely leave the colony to protect their own lives and those of others. Prisoners who expressed such a desire left the colony to join the local Territorial Defence unit. They took part in resistance to the invaders and some of them (44 individuals who took a direct part in the hostilities) were pardoned by the President of Ukraine and remained in the military formations of the Ukrainian Armed Forces.

The other released prisoners returned to the colony. Having gained combat experience, they appealed for release to fight in defence of Ukraine. Their appeals have remained unanswered. We believe this to be an example of how prisoners, nobly fulfilling their civic duty, have participated in the defence of the State. Such behaviour gives grounds for believing that a prisoner has demonstrated the readiness to reform required by law when determining the purpose of punishment. Prisoners prepared to defend the Ukrainian State should be released, in our view, in accordance with the legally-established procedure for their further mobilization.

*

Summarizing the information accumulated about Ukraine’s detention centres and colonies during the first four months of war, it was possible to identify the following two groups of problems. They exposed gaps in both legal regulation and administrative practice that require an immediate solution.

1. Problems that appeared and persisted in the temporarily-occupied territories and in the areas of immediate hostilities.

  • Violations of the rights of detainees and prisoners;
  • Torture, ill-treatment and intimidation;
  • Relocation of prisoners to unknown destinations;
  • Imposing citizenship of the Aggressor State without the free and voluntary participation of the detainees and prisoners;
  • Release of certain detainees and prisoners from custody or punishment;
  • Changes in sentences and procedural grounds for the incarceration of detainees and prisoners;
  • Exploitation of detainees and prisoners as labourers, soldiers or as "human shields";
  • Use of the penitentiary institution infrastructure to accommodate military personnel, vehicles, military equipment and ammunition.

2. Problems that existed earlier or appeared in penitentiary institutions in relatively safe parts of Ukraine.

  • Violations of the rights of detainees and prisoners;
  • Torture, violence and intimidation;
  • Failure to ensure the safety of detainees, prisoners and staff: late, incomplete and improper evacuation; inadequate funding; failure to provide informational and managerial support and actions by staff and inmates that left staff, detainees and prisoners in danger; improper conditions in the detention centres and colonies to which evacuated inmates were transferred;
  • The late and incomplete release of detainees and prisoners on the relevant legal grounds, or failure to provide detainees and prisoners with such opportunities.

PART THREE

Problems that appeared during the war; those that are endemic

A Legal Assessment

Based on information accumulated about detention centres and corrective colonies during the war, we conducted a legal analysis of certain problems and violations in the activities of the Ukrainian penitentiary system.

Due to the limitations of the information received, its possible distortion and over-emotional interpretation, the impossibility of verifying in full the data received, the uneven geographical coverage and incomplete nature of the information, we decided to describe the common features that emerged, relying on indisputable facts and the most clear-cut situations.

1. THE TEMPORARILY OCCUPIED TERRITORIES

The evacuation of penitentiary institutions

As noted, Russia’s all-out invasion of Ukraine came as a surprise to the State Penitentiary Service. This is baffling. The need for the evacuation of the country’s penitentiary institutions had been recognised and defined years earlier by the 7 November 2018 Resolution of the Cabinet of Ministers (No. 934, “On the approval of the Procedure for mandatory evacuation of certain categories of the population in the event of the introduction of a legal regime of martial law” – hereinafter Resolution 934). The invasion, furthermore, was expected. Few believed there would be a war, perhaps, but when the safe functioning of such institutions was under discussion, those responsible should have prepared for the worst.

We are interested, first and foremost, in the opportunity to implement the existing norms. According to Resolution 934, if martial law was introduced in areas close to the arena of immediate of hostilities, the evacuation of detainees and prisoners was mandatory. The norm did not list any further requirements and should be seen as imperative. Yet it could only be applied by adhering to an agreed sequence of actions relating to the local situation that met its requirements.

The fourth paragraph of the 24 February 2022 Presidential Decree “On the introduction of the Martial Law in Ukraine” (No. 64/2022) stated that the Ukrainian Cabinet of Ministers must immediately enact a plan facilitating the application of martial law. The wording implies that such a plan exists and only needs to be put into effect.

In turn, Article 8, paragraph 24-1, of the Law “On the legal regime of martial law” gives the military command and regional military administrations the right to implement, in accordance with a procedure laid down by the Ukrainian Cabinet of Ministers, the mandatory evacuation of the following persons held in the penitentiary system: individuals in temporary detention centres; suspects and those accused of a crime remanded in custody in pre-trial detention centres; prisoners serving fixed-term sentences or imprisoned for life. All are to be moved from penitentiary institutions close to the area of hostilities, to comparable institutions in a safe area.

Resolution 934 provides a sequence of actions in preparation for evacuation. Detainees and prisoners are to be evacuated from areas of hostilities, as defined by the Ministry of Defence, to areas where those inmates may be held in safety. These two areas are also defined by the Ministry of Justice, the National Police, Ukraine’s Security Service (SBU) and the law-enforcement bodies for penitentiary institutions that would serve as the starting and finishing points of the evacuation. Plans for evacuating those inmates should be part of the plans for civil defence during a specific period: the latter should also include documents referring: to the evacuation of the SBU’s pre-trial detention centres; informing organisations that the evacuation has begun; and setting up temporary evacuation authorities within the Ministry of Justice, the National Police, the Law and Order Service and their territorial (inter-regional) bodies, and in the SBU’s pre-trial detention centres. The plans should include the provision of specially-equipped rail waggons or motor vehicles; and convoys of detainees and prisoners in transit must be made using such specially-equipped transport. The evacuation should be a managed process, and economic provision made for the inmates being transferred.

The above events and measures are to be planned and coordinated by several government departments: The Ministry of Justice, the National Police, the Law and Order Service, their territorial (inter-regional, regional) bodies, and the SBU’s pre-trial detention centres. Together they should plan, organize and implement the evacuation of detainees and prisoners.

Yet as the detailed contents of the regulations show, the prompt and timely evacuation of penitentiary institution inmates is impossible in such conditions. There must be a “regular” plan of civil defence, including as one of its elements the mandatory evacuation of places of detention. The 24 February 2022 Decree of the Ukrainian Cabinet of Ministers (No. 179-р) “On organizing the operation of a unified State system of civil defence under martial law”, refers to a plan covering a given period, to be set at the level of “Full readiness”. That leads one to believe such a plan exists. It is not freely available, unfortunately, and we cannot familiarise ourselves with its contents. The existence of the plan combined with the impossibility of its implementation strengthens the argument that the evacuation of penitentiary institutions should be pre-emptive, i.e., taking place before the events occur.

This is not a criticism. Rather it shifts attention to the impossibility of acting promptly when faced by military aggression, an event that by definition is sudden and always disrupts or destroys existing links. A practical plan for evacuating places of detention should be developed and kept constantly at the ready: it should embrace the terms, procedure, routes, means of evacuation and identify those who must implement such measures. The plan must be implemented in advance, moreover, without waiting for the critical actions to take place. The scale of the task and the unwieldy nature of the penitentiary system, as well as the significant means and resources demanded by evacuation, mean that other sequences of administrative and informational action to be taken in the emergency must be defined and available. (We shall touch on this issue again, when considering how other aspects of the penitentiary system function during a war.)

Why is evacuation necessary? Why does the State need it?

The logic of the war “economy”, it seems, dictates that the care of living, decent, and valuable people should take priority. The State cannot adopt such a position with regard to its citizens.

In the field of public administration and activities Ukraine should be guided, in the first instance, by Article 3 of the Constitution. This states that

“The human individual and his or her life and health, honour and dignity, inviolability and security are recognized in Ukraine as the highest social value. Human rights and freedoms and their guarantees determine the essence and orientation of the State’s activities. The State is answerable to the individual for its activities. To affirm and ensure human rights and freedoms is the main duty of the State”.

Detainees and prisoners are persons against whom the State has applied restrictions, depriving them of some of capabilities and the freedom of will. In accordance with the mutual responsibility of the State and the prisoner before society (Article 5, Ukrainian Penal Executive Code), it should take care of those who cannot take certain decisions for themselves and are fully under the control of the State.

If this duty is not observed, there is every reason to believe that people will be exposed to danger. Legal criteria imposing the duty to respect the rights of such individuals must be established, providing a real opportunity to observe them. That makes the legal regulation of evacuation an absolute necessity.

International regulations offer similar norms. In the treatment of persons deprived of liberty, these state, it is necessary to respect their human rights. Those deprived of liberty, as detainees or prisoners, retain all other rights in accordance with the court decision that sentenced them to detention or ordered their arrest. Detention in conditions that violate inmates’ human rights cannot be justified by a lack of resources (European Prison Rules). Detainees and prisoners remain citizens; they cannot be abandoned by the State since they are fully under its control. In the current situation it is also necessary to consider the provisions of international humanitarian law, regulating armed conflicts and defining the duties of both sides.

Duties of the Occupying Power towards civilians (including detainees and prisoners) who find themselves in occupied territory

We are talking of circumstances and factors beyond our control. Nevertheless, it is still necessary to formulate the requirements imposed on the Occupying Power by international regulations as a subject with temporary jurisdiction over a certain territory.

The main requirements on the Occupying Power are formulated in the Fourth Geneva Convention “Relative to the Protection of the Civilian Population in Time of War”, 12 August 1949 (hereinafter the Convention). The Convention does not define norms related to detainees and prisoners, who had this status before the occupation. Certain general rules are laid down in the document, covering the treatment of people protected by the Convention. In particular, the Occupying Power cannot use any means of physical or moral coercion; it is prohibited from using any means that would cause physical suffering or death of people in custody. That prohibition covers not only murder, torture, physical punishment, maiming, and medical or scientific experimentation not required by the need to treat the individual in custody; but also any ill-treatment by both civilian and military governments.

The Occupying Power may not change the status of officials or judges in the occupied territories or apply any means of coercion if they abstain from their duties on the grounds of conscience. The Occupying Power is obliged to provide the population with food and medical materials using all available means, especially if the resources of the occupied territory are insufficient. In short, the Occupying Power is obliged to support law and order in the relevant territory.

Returning to examples gathered from open sources about the occupied territories, it can be stated that the Occupying Power in Ukraine has not meet the requirements of the Fourth Geneva Convention, although it has been a party to it since 1954 (as the USSR and since 1992 as the Russian Federation).

Information about penitentiary institutions in the occupied territories reveals numerous violations of the rules laid down by the Convention for the treatment of all who are living in the occupied territories.

In particular, Article 27 states that

“protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious beliefs and practices, and their manners and customs. They shall at all times be humanely treated and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”

So, the general regime of hostilities and occupation should take the presence of the civilian population into account, and the parties to the conflict must make efforts to ensure the safety of those civilians.

By employing force, coercion and intimidation against detainees and prisoners, Russia is in violation of the provisions of the Convention. Placing military formations in penitentiary institutions endangers their inmates, using detainees and prisoners as a “human shield”, a practice specifically banned by Article 51 (item 7) of the Additional 1977 Protocol to the Convention, which concerns “the Protection of Victims of International Armed Conflicts”.

The murder of a prisoner noted by the parliamentary Commissioner for Human Rights and the representatives of the Prosecutor General's Office, is a flagrant violation of Article 32 of the Convention. Moving prisoners elsewhere, forcing them to obtain citizenship of the Occupying Power, reviewing their sentences without information concerning new offenses, creating situations in which there is a risk of humanitarian problems (the lack of food, water, medicines, etc.) – together these form an incomplete list of violations of the Convention that, with a high degree of probability, can be identified in the actions of the Occupying Power’s armed forces and its other representatives. Article 29 of the Convention states that “the Party to the conflict in whose hands protected persons may be” is responsible for the treatment they receive from its agents, above and beyond the personal responsibility incurred by such representatives.

As for the “transfer” of individual employees of penitentiary institutions to the Occupying Power, such cases must be assessed in the context of Article 54 of the Convention. This forbids the Occupying Power to “alter the status of public officials or judges in the occupied territories” or apply to them any means of coercion if they abstain from performing their duties on the grounds of conscience. This also an offence under Ukraine’s own legislation.

Almost every violation allegedly occurring in penitentiary institutions in the occupied territories must receive legal assessment and classification.

2. RELATIVELY SAFE PARTS OF UKRAINE

In times of war the Ukrainian penitentiary system faces many problems. Violations of the rights of detainees and prisoners is endemic in the system and did not vanish miraculously during the war.

Data from open sources and from visits to monitor conditions in penitentiary institutions indicate with a great degree of probability that the rights of the system’s inmates continue to be violated on a systematic basis.

The right to life, a fundamental human right, is today at risk in Ukraine’s penitentiary institutions due both to Russia’s military aggression and because they are not equipped to protect their inmates from artillery and missile strikes. Most penitentiary institutions lack shelters; the rapid movement of all their inmates is not an easy task; and the means to inform and warn inmates about air attacks are lacking. We drew attention to this situation in earlier reports. Inmates in the Kharkiv, Kherson and Chernihiv Regions complained about the conditions in which they were detained.

In particular, those held in the Kharkiv city detention centre talked of a lack of glass in the windows of three buildings, cold cells, and a decrease in the food supply. The detainees were not moved to bomb shelters during air-raid warnings. At any moment, the penitentiary institution might be hit by an air strike because it was seen as a strategic target. Yet lights in the centre’s cells were on at night, in direct contradiction of regulations concerning the black-out. The neighbouring institution, Kholodnohirska Corrective Colony No. 18, had already been the target of an air strike.

The lack of shelters in penitentiary institutions has been noted repeatedly by human rights activists. It is time, we believe, that something was done to remedy this shortcoming.

Violations during the war

After martial law was introduced almost all penitentiary institutions switched to a special regime. Under Article 105 of the Penal Executive Code (hereinafter the Penal Code), the level of security may be raised and additional measures introduced under the following circumstances: during natural disasters, epidemics, accidents to critical infrastructure, mutinies by inmates, group disobedience of prisoners or if there was a real danger that the colony would be object of an armed attack. The same applies if a state of emergency or martial law were introduced in the vicinity of the colony.

When the special regime was introduced in many of Ukraine’s penitentiary institutions their inmates faced significant limits on the visits they might receive, including those by their lawyers. As noted, the Prosecutor General’s Office investigated this problem and on the basis of its inspection issued instructions. The subject did not come up again but was not, in all likelihood, fully resolved.

The Kharkiv Human Rights Protection Group (KHPG) continues to visit and monitor Ukraine’s penitentiary institutions. The information gathered indicates that the situation is stable in the institutions we visited: Korosten Corrective Colony No. 71, Zhytomyr Corrective Colony No. 4, Raykivets Corrective Colony no. 78, Ivano-Frankivsk Detention Centre No. 12, and Manevytsia Corrective Colony No. 42. Such violations were observed as inadequate conditions of detention, and in the individual premises of the social and psychological service; shortcomings in the organization of medical care for inmates, and difficulties in the subsequent employment of detainees were also noted.

During our visits we detected that some medical units lacked separate rooms where medicines supplied by relatives of the inmates might be stored. Furthermore, in violation of § 23 “General Provisions of the Procedure for the Organization of Medical Assistance to Inmates”, medical documents (Nos 025/о or 003/о) did not contain records of the transfer of medicines or health equipment from inmates’ relatives or other persons. The insufficient quantity of medicines in penitentiary institutions was unacceptable, as was the lack of proper accounting for such items.

The monitors also found individual “atypical” violations. In the medical unit of Raykivets Corrective Colony No. 78 a prisoner had been placed, for no good reason, in a cell for sick patients. He was, he explained, the “on-duty prisoner”. The presence of “on-duty prisoners” in health care institutions of the State Penitentiary Service, however, is not authorised or defined in any current regulation.

Some corrective colonies added further restrictions for prisoners in disciplinary isolation. During daytime, their beds were raised and strapped to the ceiling. Such treatment is not included in the current regulations, said the Ministry of Justice in reply to a letter from the Alliance of Ukrainian Unity.

Issues directly related to the war include interruption in the funding of penitentiary institutions (payment for goods in their stores, funds for repairs, employee wages and salaries, etc); lack of purpose-built shelters; humanitarian needs – among them shortages of medicine and food, lack of clothing and items for evacuated inmates, and the unrepaired state of some premises. The consequences of poorly-organized evacuation were that inmates moved to particular institutions, found themselves without necessities and faced by delays in provisions (the number of prisoners had increased, requiring greater funding and an increase in provisions as well as staff). Unfamiliarity with disciplinary practice at the new place of punishment also became a problem for the evacuees. Evacuated prisoners noted that they had the incentive but lacked work at the new place, diminishing their chances for parole. More details from those reports can be found at these links: [1], [2], [3].

The release of inmates

Another war-related problem was the added difficulty for detainees and prisoners seeking release. We talked to prisoners due for release, and they said it had become more difficult. Prisoner Z., a resident of Crimea, for example, was serving a 13-year sentence and was due to be released soon. Due to the annexation of Crimea, he had no place of residence to return to. Prisoner P., who formerly lived near Kyiv, was in a comparable situation. In his case, his home had been destroyed and he did not know where to go after being let out of the corrective colony.

This is a violation of the rights of inmates as defined in Article 8 of the Ukrainian Penal Code and, probably, violates certain articles of the Europe-wide “Convention on the Protection of Human Rights and Fundamental Freedoms” (signed by all members of the Council of Europe).

Physical mistreatment

As for torture, violence and intimidation, prisoners told us that force had been used against them during their evacuation to a variety of penitentiary institutions: Kropyvnytskyi Corrective Colony No. 6, Kropyvnytskyi pre-trial detention centre, Dnipro Corrective Colony No. 89, Manevytsia Corrective Colony No. 42, and Polytsk Corrective Colony No. 76.

Individual facts could not be confirmed. Some prisoners revoked their own words during attempts to verify what they had been said. Such behaviour is often explained by a fear of repercussions, of punishment by the penitentiary institution staff.

The information may still require verification. The tendency has not changed: humiliation, beating, torture and intimidation remain the principal instruments of coercion within the penitentiary system. By using force against detainees and prisoners, especially during their transfer to institutions in other regions, the staff of penitentiary institutions are showing them who is in charge at the new colony.

The most critical issues today, however, are those that have arisen during the war, highlighting the weak points of the penitentiary system of Ukraine.

Safety in wartime

Life in institutions near areas of active hostilities, and in any other parts of the system, should include security measures. Security is required not only to protect society from those who have committed crimes (or are suspected of doing so), but also to ensure that inmates and staff are not exposed to increased danger within or outside their institution. The safety of society is a goal of punishment formulated in national legislation: the personal safety of detainees and prisoners defines their legal status (Article 10 of the Penal Code). In addition, the principle of mutual responsibility of the State and the prisoner, as defined in Article 5 of Ukraine’s Penal Code, imposes on the authorities, in this case the penitentiary institution’s management, the duty to create those safe conditions.

In wartime, these provisions acquire added meaning. The threats arise from a significant limitation on detainees and prisoners’ ability to choose the most effective option to preserve their life.

Unfortunately, recently-acquired information about the country’s penitentiary institutions points to great problems in ensuring the safety of their inmates and staff. Among key issues are the slow, incomplete and improperly managed evacuation of penitentiary institutions. As noted, existing national regulations and attitudes to the legal regulation of evacuation are of a situational and unsystematic nature. The laws and regulations exist, but the persons entrusted to implement them could not begin the evacuation process due to shortages and lack of specification. The necessary sequence of actions was lacking; as were the funds, material and technical means for evacuation (cars, trains, security); agreed routes for evacuation, listed institutions and sufficient places and staff for the evacuated prisoners had not been agreed; there was no clear coordination between the responsible departments. Difficult situations arose in the host institutions: premises were unprepared, there was a lack of staff and shortages of clothing – inmates often left the previous institution without their personal belongings. This was further complicated by a disruption of ties with the outside world where the detainees and prisoners could expect support. Such problems were detected in almost all institutions receiving evacuated detainees and prisoners.

The experience of evacuation showed that violence against the inmates was a constant element. This is unacceptable, both in terms of current legislation regulating the transfer of detainees and prisoners and of the moral and ethical requirements and parameters of humane treatment.

Lack of funding

Next in frequency was a problem often mentioned by inmates and staff of penitentiary institutions, the lack of funding. This has always been an issue: it is now chronic. Since the beginning of the war its consequences have become devastating. Lack of funding for penitentiary institutions stranded in uncontrolled territory can be understood: it is impossible to ensure the proper use of funds in such conditions. It is unacceptable, on the other hand, to deprive institutions in territory controlled by Ukraine of their funds.

This affects every activity within an institution. Staff of detention centres and corrective colonies, working to a special regime, do not receive the necessary remuneration. This leads, in turn, to a sense of outrage among the staff and they perform their duties inadequately. Detainees and prisoners do not receive food and shops in corrective colonies either cease to work or operate only with significant interruptions due to a lack of supplies and lengthy terms for their procurement and delivery. Such problems were recorded at Zhytomyr Colony No. 4 and Korosten Colony No. 71. The management of Raykivets Colony No. 73 also said that a lack of funding to arrange ID papers for inmates led to a variety of humanitarian problems.

A similar situation applied to the supply of medicines. They were in short supply in peacetime, and due to unstable funding during the war, they were either not sent regularly to the institutions or not sent at all. Others helped by supplying the necessary medicines: relatives of the inmates, and human rights and volunteer organizations. Yet it was not only with regard to medicine that humanitarian needs arose. At Ivano-Frankivsk Corrective Centre No. 12 management stated that the institution needed pumping equipment for the boiler room, it wanted to upgrade kitchen and bath equipment, and acquire an industrial boiler (with a capacity of 1000–1500 litres) for the bath and laundry premises, as well as soap, detergent, bedding, clothes and shoes for the winter. The management of most of the colonies visited said there was a shortage of humanitarian aid.

Lack of informational and managerial support

The war uncovered another weak link in the penitentiary system. There was a lack of information and managerial support to back up the actions of staff and inmates and this left both in danger. After Russia’s all-out invasion began, the only media showing that the Penitentiary Service still existed were online social networks, in particular Facebook. There was no link to the institution. The Service posted notices on Facebook only indirectly related to the functioning of the penitentiary system and its response to the war. Only after 10 March did posts clarifying the situation of inmates and staff in penitentiary institutions in wartime begin to appear on the Penitentiary Service's Facebook page. In particular, first there were posts about the opportunities for release under new provisions of the Criminal Procedural Code (Articles 615 and 616), for securing a pardon and the details of Article 43.1 of the Criminal Code (“Undertaking a special mission to prevent or uncover criminal activities”). The sequence of actions to be applied to inmates of penitentiary institutions during wartime was only defined and made public, however, almost two months after the Russian invasion. The clarification of actions to be taken by the management of any institution was only posted on 28 April.

In wartime conditions, and considering the great difficulties that arose in security, the economy, transport and society, it was difficult to deal urgently with many issues. Yet Ukraine’s penitentiary system has been granted exclusive competence to deal with the issues that affect the functioning of the system. Executive clarification and effective management are the main tasks of officials. The development of sequences of action under conditions of martial law is the primary task of the system. The slow response of the penal executive system to the challenges of wartime resulted in the needless endangerment of inmates and staff, interruptions in funding, improperly conducted evacuation, failure to ensure the safety of inmates and staff, and a loss of property of the penitentiary system and its inmates.

Among the staff of penitentiary institutions this resulted in feelings of despair and uncertainty, and a sense of being left to fend for themselves. In some cases, this led staff to go over to the enemy and "surrender" institutions to the Occupying Power. Examples of such behaviour were recorded in the Donetsk and Luhansk Regions, the Kherson Region, and in some institutions in the Chernihiv and Kyiv Regions. The latter were rescued by the liberation of the respective territories; the same cannot be said of institutions in the Donetsk, Luhansk, Mykolaiv, and Kharkiv Regions. This points to a lack of stable connections within the system and its inability to operate in an "automatic" self-preservation mode.

*

The extraordinary events of recent years have demonstrated the effectiveness and value of using the number of inmates of penitentiary institutions as a tool for managing the penitentiary system as a whole. It allows for cost optimization in maintaining institutions, reducing the number of inmates to facilitate their management in difficult and stressful conditions.

The war has also revealed the willingness of detainees and prisoners to take part in the defence of Ukraine. This is one criterion of the inmate’s capacity for change, proving that he or she have reformed (a change required by criminal and penal executive law) and are ready to perform such a duty before State and society. It is a positive role which detainees or prisoners are willing to fulfil, aware of the risks and responsibilities it entails. Such initiatives must be encouraged and supported, taking into account the personality and behaviour of the individual expecting release, his or status, and the location of the institution from which the individual is being released. The State has responded by releasing over 360 inmates from penitentiary institutions for further mobilization.

It makes sense for security reasons and to reduce the burden on the penitentiary system, considering the status of some prisoners (former law enforcement officers and military personnel), to expand the use of the early release of inmates with experience and skills in combat operations or in the application of force. The inmate’s criminal-legal and criminological characteristics must also be taken into consideration. The legal grounds for release (including early release), as defined by current legislation, should be applied in a prompt and efficient manner. This will not only meet legal requirements, but also reduce the pressure on the penitentiary system, which under martial law faces additional difficulties with regard to funding, provisions, evacuation, the maintenance of detainees and prisoners and ensuring their safety and inviolability.

Under martial law, the vulnerability of the inmates of penitentiary institutions increases for reasons mentioned above. Other more complex challenges also arise. Persons accustomed to following orders and to having their behaviour determined by others, have to make decisions unexpectedly and without any guarantee that they will preserve their life and health. As a result, they may be expected to do physical harm to others (military personnel of the occupation forces, collaborators, etc.). This puts a detainee or prisoner in a difficult position. Unused to making independent decisions, it is sometimes difficult for them to know what to do. Inmates may not have the status of combatants, but their criminal status places them beyond the bounds of ordinary social relations.

In this respect, we believe, it is necessary under martial law to quickly adopt or implement regulations governing the procedure, conditions and terms whereby detainees and prisoners may be released, as well as the sequence of actions they must perform to ensure the legitimacy of their participation in hostilities. Grounds for release should be amnesty, pardon, parole for convicted persons, or release from custody for detainees.

Inmates of the country’s penitentiary system should not be deprived of the chance to defend Ukraine and prove that they have reformed just because events are unexpected and have caught the system unprepared.

CONCLUSIONS

Indirect study of Ukraine’s penitentiary institutions has shown that the system still lacks established mechanisms for effective action in emergency. Since 2020, a succession of extraordinary events (the coronavirus pandemic, the war) have presented the Penitentiary Service with a variety of tasks, distinguished by their unexpected and unpredictable appearance, consequences and development. It has faced the need to respond quickly, consistently, efficiently and adequately to the challenges they pose.

The penitentiary system has responded eventually, but it cannot be said to have reacted in a timely and efficient manner. The rights of detainees and prisoners are still being violated; conditions of detention are changing, but very slowly; torture and violence are widespread in the system. The introduction of martial law has exposed the excessive inertia of management in the penitentiary system. Some penitentiary institutions ended up, as a result, in temporarily occupied territories; detainees and prisoners fell victim to military aggression; and evacuated inmates did not always enjoy adequate support. Penitentiary institutions faced significant difficulties with funding and meeting humanitarian needs.

We have highlighted two groups of problems – those affecting institutions in the occupied territories and the combat zone; those affecting institutions in areas controlled by Ukraine – that require a systematic solution and constant monitoring. Unfortunately, most problems and difficulties identified in this report cannot be resolved immediately. Comprehensive measures and continuous efforts are needed to create and maintain conditions in which the penitentiary system can function properly and assure the rights of its inmates even in wartime. Efforts must continue to evacuate endangered detention centres and corrective colonies in the occupied territories, to meet the humanitarian needs of their inmates and prevent their humiliation, torture or exploitation as slave labour or as combatants fighting against Ukraine.

Assuring the human rights and freedoms of all its citizens is the indisputable duty of the State. It is a positive obligation, i.e., it requires the active intervention of the State and its institutions. This duty must be fulfilled even when norms and mechanisms detailing the necessary sequence of actions have not been provided. Article 5, pt. 1, of the Law "On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine" establishes that the State must adopt all necessary measures to guarantee the rights and freedoms of the individual and citizen. The Constitution and laws of Ukraine and international treaties state that they must be guaranteed to all citizens of Ukraine living in the temporarily occupied territories.

We wish to single out problems in need of resolution that allow for the introduction of martial law in Ukraine:

  • the systematic violation of the human rights of inmates serving criminal sentences in penitentiary institutions (conditions of detention, medical rights, transfer, failure to ensure basic rights, violence against prisoners, torture, etc.);
  • lack of proper legal regulation for the effective and timely evacuation of detainees and prisoners (terms, routes, logistical and transport support for evacuation, material support, the means and powers to ensure security and safety during the movement of inmates);
  • problems with the funding of penitentiary institutions and their staff;
  • shortcomings in identifying and meeting the humanitarian needs of the penitentiary system under martial law;
  • the improper arrangement of shelters in penitentiary institutions for the protection of inmates and staff during shelling and bombing;
  • the lack of informational support and coordination for inmates and staff regarding the actions to be taken in various circumstances (martial law, nearby hostilities; the occupation of the institution);
  • the belated and limited application of early release for inmates of penitentiary institutions;
  • the failure to record war crimes in penitentiary institutions under martial law or an incomplete record of their occurrence;
  • insufficient efforts to transfer detainees and prisoners from the occupied territories to areas under the control of Ukraine; the creation of humanitarian corridors for penitentiary institutions in the occupied territories, etc.;
  • the limited involvement of civil society institutions in support and assistance to the penitentiary system.

In response to the above problems and violations, we have formulated the following recommendations as to how violations may be eliminated or mitigated in penitentiary institutions under martial law.

RECOMMENDATIONS

Ukraine has faced recurrent emergencies in recent years. In future, the penitentiary system must be ready to cope with such events.

[1] Adjust the special regime to the demands of each event

Article 105 of Ukraine’s Penal Executive Code permits the introduction of a special regime in the country’s detention centres and colonies. It should not become an automatic response, in our view, to emergencies or exceptional events.

Emergencies vary in nature and pose different threats. The response must be tailored to fit each circumstance. The rapid spread of coronavirus, for example, required a reduction in personal contacts, but not their elimination; it demanded conditions in which hygiene and sanitation would receive close attention.

The outbreak of the present hostilities presents different needs. Given the patriotic sentiments of detainees, prisoners and a significant number of the staff, it would be appropriate to ease the regime under which inmates are held in Ukraine’s penitentiary institutions. We are not suggesting that inmates be transferred to "semi-free" conditions of detention: it is not acceptable, however, to isolate them in their cells or deprive them of visits, when they are realistic and feasible. Visits allow detainees and prisoners to maintain positive contacts and receive support and help from relatives and lawyers. Confining inmates to their cells during enemy attacks places them at risk of losing their lives.

Article 105 requires clarification. It should provide “dynamic” security, permitting the introduction and application of restrictions after a risk-assessment of the current circumstances. The optimum application of such a system has been proven by experience and is considered by the European Court of Human Rights (ECtHR) to be the most justified way of applying legal restrictions.

[2] Tackle persistent human rights violations

The systematic violations revealed during visits to detention centres and colonies are a problem of the system; that has not changed with the introduction of martial law. They must be tackled at the level of legal regulation and the law-enforcement practices of penitentiary service staff.

Cases of beating, the use of violence and the abuse of detainees and prisoners were recorded in Ukraine’s penitentiary institutions and during their evacuation to other sites. These violations require thorough investigation and demand an appropriate response by the relevant law enforcement bodies. It is essential, therefore, to continue implementing the decisions of the ECtHR and of Ukrainian institutions concerning violations in detention centres and colonies.

[3] Pass a law to regulate evacuation

A law carefully regulating the procedure and conditions for the evacuation of penitentiary institutions must be drafted and adopted. The document should define the conditions and threatening situations in which evacuation is mandatory.

The introduction of martial law and the location of institutions in territories with an increased risk of active hostilities and enemy occupation make evacuation essential. Even if such events (combat operations and the occupation of territory) do not occur, this may not be used to argue that evacuation is premature or unnecessary.

The regulatory act must do the following: specify criteria and deadlines for evacuation; identify those taking part and the means necessary for its implementation; ensure the safety and protection of detainees and prisoners, as well as free citizens during the evacuation; list items of material and technical support (e.g., vehicles, food, medicines); establish evacuation routes and identify receiving institutions; provide for evacuees at the place of arrival; regulate staff numbers to take account of an increase in the population of the receiving institution; identify sources of finance and the potential for reduction in the number of inmates by releasing prisoners and detainees on the relevant legal grounds. Reserve funds must be established to cover the costs of material and technical support.

[4] Tackle the system’s under-funding

As always, funding the Ukrainian penitentiary system is an enormous problem. Throughout our period of research, we encountered difficulties caused by underfunding. It was, as a consequence, impossible to create proper conditions of detention, the necessary medicines were in short supply, and inmates’ provision of food, clothing and other assistance was inadequate.

During the pandemic, this meant that institutions were unable to test inmates for Covid or provide them with personal protective equipment and medicine. During the war, underfunding has affected every aspect of the inmate’s life. In addition, the staff of penitentiary institutions also experienced the negative effect of under-funding (e.g., late receipt of additional payments and allowances).

The State should make efforts to improve the funding of the penitentiary system, in wartime conditions as well.

[5] Meet inmates’ humanitarian needs

The critical events of recent years have revealed significant gaps in provision for detention centres and colonies. Insufficient funding and general inattention to the needs of the penitentiary system on the part of State institutions have led to a constant failure to meet the humanitarian needs of inmates.

It is necessary, in our opinion, to appeal to the volunteer movement, and to draw on initiatives implemented by civil society. With the mandatory participation and support of the State, there must be constant monitoring and information-gathering about humanitarian needs in detention centres and colonies. Overall coordination of these activities is essential if humanitarian aid is to be used effectively and reach the areas of real need.

Human rights organizations such as the Alliance of Ukrainian Unity, the Kharkiv Human Rights Protection Group, Ukraine without Torture and others are currently implementing similar initiatives. They are also supported by international organizations.

[6] A protective infrastructure is needed

Russia's military aggression against Ukraine has presented the managers of penitentiary institutions with new tasks. They must ensure the safety of the inmates and staff of their institutions; honour the mutual responsibility of State and inmate; acknowledge international and national norms assuring the rights and freedoms of the individual and the citizen, especially in detention centres and colonies where the inmates are isolated from society and cannot take certain measures to protect their lives.

A protective infrastructure must be created in detention centres and colonies. It is necessary to equip shelters to accommodate detainees, prisoners and staff, or even construct them if materials and space are available; to accumulate stocks of food, drinking water, medicines and basic necessities; and to set aside means of life support in an emergency (e.g., generators, lanterns, means of communication).

[7] Inmates and staff must be kept informed

The Ministry of Justice and the Penitentiary Service must provide active and constant administrative and informational support to the inmates and staff of penitentiary institutions – concerning martial law, hostilities in the vicinity of the institution, or the issues facing an institution under enemy occupation.

Not only must pages in social media be maintained; timely normative acts must be issued at various levels (including the local); their content must be promptly brought to the attention of those directly affected; and organizational and methodical assistance in their implementation must be provided. It would also be expedient to create a "hotline" for the Ministry of Justice and the Penitentiary Service, enabling them to respond rapidly to developing or changing situations and make coordinated decisions.

[8] Relieve pressure by releasing detainees and prisoners

A broad campaign is needed to relieve the pressure on the resources of penitentiary institutions by releasing detainees and prisoners on appropriate legal grounds.

We are not calling for the release of “as many people as possible”: individual cases and the conduct of the particular inmate must be studied. This process should be accessible, transparent and permanent. It must not be a spontaneous act – arising suddenly and sweeping like the wind through an institution before it subsides. A large number of prisoners have submitted petitions for pardon, but they remain unanswered. Work on the release of inmates must be so organised that detainees and prisoners are regularly informed of the status of their petitions or applications for release on parole, etc.

[9] War crimes must be fully recorded

Detention centres and colonies are among the organisations that have suffered and continue to suffer damage and destruction. They always contain a large number of people, and it is impossible to easily vacate such institutions.

Given Russia’s terrorist tactics in the conduct of hostilities, the penitentiary infrastructure and its institutions have become targets for destruction. In such conditions, war crimes and crimes against humanity in places of detention must be recorded. There must be mandatory documentation of all cases of shelling, destruction, deaths and injuries of inmates and staff. These materials should subsequently be transferred to law-enforcement agencies.

[10] Make efforts to return inmates from occupied territories

There must be ongoing efforts to bring detainees and prisoners back from the occupied territories to areas under the control of the Ukrainian State. Humanitarian corridors should be created for detention centres and colonies in the occupied territories. Evacuation of penitentiary institutions from those territories should continue where possible.

These efforts and activities require the involvement not only of the Ministry of Justice, but also the parliamentary Commissioner for Human Rights, Red Cross organizations mandated to visit institutions in the occupied territories, and other national and international organizations able to influence negotiations and assure the organized return of the inmates and staff of penitentiary institutions.

[11] Greater involvement by civil society

Detention centres and colonies in Ukraine have always required support from both State and civil society. It is no exaggeration to say that the support of civil society "opened" these institutions up for change and improvement. It remains extremely important to expand the involvement of civil society in the provision of support and assistance to the penitentiary system.

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