Prisons in Ukraine

Prisons in Ukraine are regulated by the State Penitentiary Service of Ukraine, a part of the Ministry of Justice of Ukraine.

Zamkova Correctional Colony no. 58.

There are 32 preliminary prisons, 131 penitentiary establishments for adults and 8 colonies for minor criminals in Ukraine.^[1] According to Amnesty International, torture and ill-treatment by the police is widespread in Ukrainian prisons.^[2][3] Several police officers have been arrested for allegedly torturing detainees.^[4]

The War in Donbass, that started in the spring of 2014, significantly worsened the lives of inmates in the conflict zone.^[5]

Prison population

In early 2010, there were over 147,000 people in prison and more than 38,000 in pre-trial detention facilities in Ukraine, a total three times that of Western European countries,^[6] and half as much as in the United States. In 2009, the number of inmates in Ukraine rose for the first time in seven years. Coupled with this increase was a higher instance of suicide (44 prisoners) and HIV (761 deaths therefrom) in penal institutions during 2009; the former compares with 40 suicides in 2008.^[6] Between 1996 and 2001, about 26 percent of inmates in various prisons across Ukraine tested HIV-positive. In a January 2006 study, between 15 and 30 percent of prisoners tested HIV-positive.^[7] In early 2005, tests showed up to 95 percent of prisoners were hepatitis C positive.^[7] In 2011, 6,000 inmates had HIV and 5,500 suffered from an active form of tuberculosis.^[8]

Various inmates have been kept in pre-trial detention for up to 12 years; there is no legal limit as to length of such incarceration.^[8]

Conditions

Convicts in Ukrainian prisons work 7 or 8 hours a day, except for weekends.^[9] Prisoners get to keep part of the money raised from the sale of the items they produce.^[9] They are limited to four pairs of shoes.^[9] Computers, cell phones and other electronic gadgets are strictly forbidden in jail.^[9] Bathing may be limited to once a week.^[9]

According to the US Department of State Human Rights Report 2009, conditions in prisons and detention facilities in Ukraine are harsh, and pretrial detention was seen as arbitrary and lengthy.^[10] According to Amnesty International, allegations of torture and ill treatment in police custody increased in 2010.^[3]

Human Rights in Ukrainian Prisons

2013

Legislation

Over the year 2013 the legislation regulating the administration of penalties has changed more dramatically than over any given historic period in the development of the national incarceration law. The process was so intense that scholars and practicing lawyers, human rights atavists did not have time to analyze the whole body of the law, which definitely will become the focus for future discussions.

The process was obviously related directly to the requirements of the Ukraine-EU Association agenda.^[11] However, the number of the legal/normative acts and their amendments did not improve their quality, but, on the contrary, more often than not, deteriorated inefficient national legislation regulating the rights of people held in custody in PTIC and CF.

In brief the results of the law-making activities are presented in the Information “On the implementation of the Ukraine-EU Association agenda”;^[12] it reads, specifically that “in order to bring the conditions of incarceration into compliance with the European standards, the Ministry of Justice has approved 43 orders (between 2013 and the publication of the information – author’s note.)…”. By 09.12. 2013 the number of orders increased to 48, and the SPSU claimed they have been prepared by the service.^[13] Noteworthy, the majority of the orders in fact either deteriorated the convicts’ situation or did not change it at all. Many novelties were qualified by the specialists as “departmental plagiarism” meaning that the old orders of the State Department on implementation of penitentiary measures were given new letterheads of the Ministry of Justice and amended with few insignificant changes.^[14]

The situation was even worse when the Ministry of Justice really introduced changes to the acts passed by the penitentiary department,[6] e.g. the Internal Regulations for the PTIC.^[15] The Regulations adopted without public discussion contain large body of norms aimed, first of all, at facilitating the operation of the PTIC officials, while the rights of the inmates are violated.^[16]

The Regulations reflect the philosophy of maximum restrictions in the inmates’ access to information, so that no information on a criminal case would reach them. Other unjustified restrictions, i.e. on keeping articles and materials which were earlier allowed, opens the door for corruption schemes in the PTIC by “legalizing” these restrictions for additional fees. It is noteworthy that the Regulations were really modernized – they banned all the possible communication channels and electronic media which have appeared in Ukrainian markets over the recent years. Specifically the use of TV, radio, audio and video devices, video tapes, CD and DVD, multiplication devices and equipment; computers, game consoles and detachable devices, portable video games, accumulators and chargers etc. are banned. On top of everything, this act contains a lot of legal errors.

That is why it was severely criticized by the academics, specifically, by the scholars from the V.Stashys criminal research institute, human rights activists and organizations that approached the Ombudsman, the Ministry of Justice, and the Prosecutor’s General office with the open letter demanding its invalidation. However, not a single entity provided an answer.^[17]

Currently the draft new Internal Regulations for CF has been prepared, once again without any prior public hearing.^[18] Although this document is considered a “Bible” which should guide the whole operation of CF and the life of its inmates, no one wants to discuss it with public at large. Meanwhile, the criminal prosecution experts are very negative in their assessment of the novelties introduced by this normative act.

It should be also mentioned that the Ombudsman Office managed to organize one meeting to discuss this document together with SPSU leaders. Our specialists prepared their notes and recommendations with respect to the major flaws contained in the Regulations, but their majority was rejected at once without any substantiation or explanation. Later the same experts devised direct comments to the Regulations’ norms contrary to the specific provisions of the European prison regulations and Reports of the European Committee on preventing tortures and inhuman and degrading treatment or punishment (CPT). Several months later SPSU offered no incentives to continue the dialogue, so that one can conclude that the draft Regulations would be adopted without any consideration of public opinion. Besides, the requirements concerning the construction norms for the penitentiary facilities were eliminated from the Regulations currently in force. According to our information it should be approved by a separate departmental act, which, despite its importance in the light of adherence to human rights (visiting conditions, accommodations etc.), is not yet available to the public, and, probably, will not be discussed openly.

The practice of “fake” public discussion on the normative and legal acts, introduced by SPSU, deserves special attention. Thus, according to public consultations List,^[19] many normative and legal acts had to be discussed publicly, although, as far as we know, some acts were not even posted at the departmental sites for the discussion. Reluctance to involve public at large in the law-making process is characteristic of other bodies of power as well, e.g. the Presidential Administration which completely rejected the proposal of introducing changes into the Pardon Provisions initiated by “Donetsk Memorial”.^[20]

In 2013 The Cabinet of Ministers of Ukraine adopted the State target program for the reforming of the State criminal prosecution service for the years 2013 - 2017 (the Program),^[21] which could have become most important and instrumental in introducing positive changes ensuring the rights of the prisoners. Its potential, however, was reduced to minimum due to the irrational allocation of funds needed for the implementation of the measures which would ensure the priority of human rights.^[22]

According to the program’s Passport, 6011.73 million UAH, i.e. over 6 billion UAH, or 1.6% of the intended revenue of the State Budget for 2013, was allocated for the Program implementation.

One third of funding should have been used to design and construct penitentiary facilities outside central areas of Lviv, Odessa and Kherson. (2051.7 million UAH). The task addressed by this measure is described in the program as “The improvement of the conditions in which the inmates are kept, transfer from the stay in the facilities of the barrack type to block (cell) accommodations with the increased area per capita by way of technical refurbishment and reconstruction of the CF, construction and reconstruction of the existing PTIC” and envisages the entire funding of 2802.07 million UAH, including the aforementioned 2051. 7 million UAH. The problem of overcrowded PTIC and colonies currently ranks second,^[23] and respective allocations should be used to introduce the most desirable block system of the inmates’ upkeep within the criminal execution service.

The scope of the funding planned for the”modernization of the engineering and technical means of security and surveillance, implementation of modern technologies with the goal of creating a multi-tired system of the centralized security and video-monitoring, automatic information and telecommunication systems within the SPSU” constitutes 1107.01 million UAH, while only 123.96 million UAH are stipulated for the “improvement of catering for the convicts and persons in custody, the system of food purchase, bare necessities, and communal and everyday use equipment”, and 400.52 million UAH – for the modernization of the engineering infrastructure ( such important areas as heating, water supply, sanitation etc.), while the enhancement of the penitentiary service efficiency, without incarceration (including the setting up of the probation service) envisages sum total of 0. 64 million UAH.

The situation looks even more dramatic if one considers the amounts of money allocated for the health care for the persons in custody and improvement of health care services. These issues were the matter of serious concern within the CE institutions and priority tasks for the Ukraine-EU association agenda. This amount constituted 179.57 million UAH or about 1/33 of the entire program scope and only 1/4 of the amount to be spent on modernization of the CF system.

The amount of money to be spent on modernization of the CF system and the improvement of the professional training for the individuals condemned to prison terms and restriction of freedom constitutes 730.48 million UAH (with only 18.93 allocated for vocational training of the inmates). These figures once again justify the concern expressed in the last year report with respect to the “economic priorities” characteristic of the penitentiary department in its dealings with subordinate entities and the goal of obtaining profits from the prisoners’ work instead of providing them with skills and knowledge useful for their reintegration in the society.^[24] The changes introduced to the Law of Ukraine “On the State criminal executive service”at the end of 2012, under which the CF

The transformation of production units from “the enterprises engaged in non-commercial economic activity without goal of obtaining profit, to ensure professional and technical training of the convicts and their engagement in work operation…” (p. 1 art. 13 of the Law) into the “enterprises involved in economic activities and professional and technical training of the convicts” manifests the same tendency. The goal of the changes is obvious and contrary to the rule # 8 of the European prison rules,^[25] which stipulates that “although obtaining financial profit from the operation of the enterprises in the correctional facilities can be useful from the point of view of enhancing standards and quality and expediency of the professional training, the interests of the prisoners should not be subject to this goal”.

Ukrainian experts also voice other critical concerns. According to the aforementioned Passport, the Program envisages the attraction of funds not only from the state budget, but also from other sources “not prohibited by the law”, specifically, 2129.7 million UAH, i.e. more than 1/3 of the Program funding. Most probably, these funds will come from the investors who would use them in the CF production process; therefore, the labor of the convicts will most probably be used to the maximum and at the minimum wages to recover these costs.

On 05.09.2013 the Law of Ukraine “On introducing changes into the Criminal Executive Code of Ukraine on the order and conditions of serving prison terms”. This Law is rather declarative and progressive in language only, introducing in fact just formal changes.^[26] The experts assess the Law as regressive due to its restrictive nature with respect to the human rights. A renowned expert in the criminal execution law V.Badyra states that while “earlier the code contained 11 restrictions for the persons serving their term in prison, now there are 24 restrictions”.^[27]

The primary goal of the new law was ensuring the right to use cell phones for the convicts in the CF of minimum security level and social rehabilitation centers. However, at the time of the first reading in parliament this amendment was rejected. During the first days after the law was passed the journalists made a lot of public claims to the effect that changes have been introduced, in defiance of the actual state of things. The convicts are still approaching Kharkiv human rights group asking whether they can use the cell phones in the correctional facilities. The human rights activist Ye.Zakrevska made an apt comment to the effect that “the cell phones will not become scarce in the prisons. For certain fees they will be given to the inmates so that these latter could use them with silent and paid-for approval of the administration”.^[28]

The passed law once again confirmed the ban on the meetings with attorneys and other persons while staying in the disciplinary isolation cell. The convicts will be deprived of any visits apart from the attorney’s visits, while in quarantine or diagnostic ward. The list of persons entitled to long-term visits with the convicts serving their term (and short-term visits for those serving life term) will be limited to the nearest family (spouses, parents, adoptive parents, siblings, grandparents, grandchildren), which is an absolutely unjustified restriction, from the point of view of both Convention on protection of rights and fundamental freedoms and practices of the European Court for Human Rights. The new automatic (without any assessment of individual risks and needs) restrictions of the rights of convicts under disciplinary proceedings, i.e. stay in the disciplinary isolation cell or in the facility of the cell type to the telephone talks, which can be allowed only by the colony warden with the educational goal or under extraordinary circumstances (death or serious sickness of a family member etc.).

On October 10, 2013 the draft Law of Ukraine “On probation” was passed in the first reading. It was devised by the SPSU and failed to take into account the experts’ recommendations aimed at transforming the criminal –executive inspection into the probation service. It does not embrace the classical characteristics of probation typical of the countries where this institution is well-developed. For example, it does not stipulate the preparation of the reports, based on the risks and needs assessment, and justifying early probation release of the persons serving their term in prison. The draft does not stipulate any assistance to the probation clients, especially those discharged from the places of incarceration, although combining supervision and assistance to the persons in questions is one of the main probation characteristics.^[29] The idea of public participation in the probation programs, which has been successfully operating and achieved positive results in the UK, is practically reduced to zero in the draft.

Besides, the Chief expert research department of the Supreme Rada of Ukraine apparatus concluded that the draft contained a lot of terminological discrepancies with respect to the legislation in force. The concept of applying probation measures to both suspects and defendants also seems dubious. Neither suspects nor defendants cannot be considered guilty of felony and, therefore, needing “supervisory” or “social education” measures.^[30] By the way, the funding assigned for probation, as was mentioned before, constitutes an insignificant portion within the Target program for the reforming of criminal executive service– 0.64 million UAH. The specialist, therefore, are concerned that the introduction of probation in fact will amount to nothing but renaming of the criminal executive inspections.

The specialized units under the SPSU deserve special attention. Their operation has been long criticized by the human rights organizations. Under the pressure from public the decision on state registration of the order regulating their operation in the past was cancelled, and the order in question was removed from the State registry of the normative/legal acts on 14.01.2008. Nevertheless, the penitentiary department has been using the said units without any legal justification till 03.07.2013, when finally the respective order #1325/5 was passed by the Ministry of Justice.^[31] Despite generally positive nature of the aforementioned act regulating the operation of the potentially dangerous unit, it still contains rudimentary norms, which led, among other things, to the cancellation of its registration. For example, the functions, performance of which falls under the competences of the CF staff still are regarded as the units ‘prerogative: searches of the residential and production zones, personal belongings of the inmates etc. (p.3.7); ensuring law and order, adherence to the procedure of serving the term in CF and PTIC and adjacent territory under the law and other normative and regulatory acts; (p.3.9). In fact, the world practice testifies that specialized units can and should be used only in the emergency situations of mass actions disrupting work in the facilities, group sedition on the part of the inmates, hostages taking and other emergency situations.^[32] Meanwhile, the current version justifies everyday use of these units “to maintain order” and intimidate the prisoners with the goal of establishing army discipline, which is unacceptable as far as normal relations between the staff and the inmates go, according to the CPT recommendations for Ukraine of 2012. This practice, however, persists.

It is noteworthy that the order #1325/5 failed to reflect two major CPT recommendations of the same year: the entire operation of the unit should be video-taped (the order establishes that video is to be used only to “document illegal actions of the convicts, persons in custody and other individuals”, i.e.not the commandos’ actions ); each member of the unit in the course of special operation should wear a badge enabling his identification and appeal of his illegal actions in the future, if need arises.

All these faults beyond any doubt contributed to the horrendous events that occurred in 2007 and included mass beatings of the prisoners in Izyaslav colony, which were classified by the ruling of the European Court on “Karabet et al. vs. Ukraine” (2013 рік)^[33] as the violation of their Convention rights not to be subjected to torture. Characteristically, this ruling did not ban the practice of systematic use of the said unit; moreover the officers in charge of this bloody operation not only were not dismissed, but are holding higher offices within SPSU till present day.

One of the routine aspects of the CF everyday life is the organization of the educational and psychological work with the inmates. It reflects the “educational” component of the national policy with respect to the penitentiary system. It still prevails in the ideology of the incarceration department as the goal of correction, inter alia, inherited by the Ukrainian criminal law from the soviet times. This approach has been severely criticized by a renowned scholar A.Stepanyuk and his followers for its impracticality and incapability of being useful to the society at large,.^[34][35] Personal reform still remains the main goal of the punishment under the CC of Ukraine, which in the end of the day contributes not only to the embellishment of the real state of things in the correctional facilities but also creates a lot of practical problems for their staff in defining the level of reform required for the early release on probation, replacement of punishment with the milder one etc. As a result, the practices of penalties are not defined leading to the violation of the inmates ‘rights. (In our operation we come across the ungrounded rejections of these incentives on everyday basis).

Nevertheless, this obsolete and biased policy still remains in place and is widely used. On 04.11.2013 the Ministry of Justice approved the Order #2300/5 “On organizing social, educational and psychological work with the convicts",^[36] which replaced the earlier similar act of the State Department “On approving the provisions regulating the operation of social-educational and psychological service of the correctional facilities” # 33 of 17.03.2000. The very availability of the Order (instead of just its fragment, which was the case earlier) is a positive development. But the act itself cannot bring any positive changes into the practical operation.

No tangible changes are envisaged in the operation of the social and psychological service. For the reasons unknown the order did not approve a special provision on the methodological and educational council of CF, so it is not to be found in the act. The heads of the said service, however, are still entitled to consultations, methodological and practical assistance granted by the council in the education of the inmates. On the other hand, a new clause regulating the operation of the organizations set up by the prisoners themselves was added. The special document regulating the operation of these organizations is a requirement of the CC of Ukraine. So far it was not met, causing the criticism on behalf of the experts.^[37] The analysis of the document, however, shows that its norms are rather declarative, unrealistic and hardly feasible in practice. Its implementation will lead to further overloading of the social and psychological service staff (and of the convicts working together with the CF administration), who have a lot of work already, as the main goal of the said service is “voluntary-compulsory” associations of the convicts, based on common interests, for the resolution of the everyday problems through self-governance. It would be more relevant for the soviet era pioneer camps than for addressing routine problems of the CF, its staff and inmates.

The order in fact banished the psychological service as a separate unit. Now it will constitute a part of the social-psychological service, with no substantial changes involved. The policy of lowering the standards of psychological support in the CF is another reason for concern. Earlier only a person with higher psychological or pedagogical education could be hired as psychologist, while now this responsible position, which requires deep knowledge of psychology and pedagogical sciences, is available to anyone with incomplete education of the junior specialist.

The deterioration of standards is accounted for not only by the staffing problems, but by the financial issues as well. Characteristically, under the Order the psychologist is entitled only to an office, while earlier he/she was also entitled to office equipment, i.e. computer, audio and video devices, psychology manuals. The lack of regulations with respect to the room of psychological relaxation is another proof of rigid economy regime in providing psychological support. (Earlier the requirements stipulated that the room had to be equipped with color TV set, video and audio tape recorder, acoustic system with quadro-effect, projector with relaxation slides etc.). Anyway, the psychologists’ operation has been long regarded as the SPSU burden, so in practice it amounts to filling out the required paperwork. In total disregard of the world trends, the national psychological service has never been a priority for the penitentiary system; therefore it is neither respected nor trusted either by inmates or staff. The aforementioned lowering of standards, however, was the last drop in questioning its importance for the mental health of the inmates and staff, their relationship, addressing the issues that arise and creating favorable psychological climate in a facility.

There is hardly any explanation for the fact that the section of the diary of individual work with the inmates reflecting the improvements/reforming of behavior, (most important for decision-making with respect to the use of incentives, e.g. early discharge) under the new Order contains a clause “attitude to the jobs performed, self-service and facility improvements” instead of “attitude to work”. The new diary format reflecting work with minors envisages only attitude to studies. It is contrary to the requirements of CC and CEC of Ukraine, because an early release, for one, should be based on the behavior assessment and attitude to work, and not only self-service and improvements in the facility. (p. 2 art. 81 CC of Ukraine), while for the minors the criteria include behavior and attitude both to work and studies, and not to studies only (p. 2 art. 107 CC of Ukraine). Currently these indicators formally are not included into the overall assessment of improvement in defiance of the highest legal act – CC of Ukraine. Interestingly, the ethnicity of a person will no longer be specified in the diary – it will be replaced by citizenship, a most welcome innovation. However, the log reflecting the work with the inmates still has this line alongside with “citizenship” line.

02.07.2013 the Ministry of Justice adopted another document, important for the functioning of the CF and the adherence to the convicts’ rights – the Order # 1304/5 “On approving the Instruction concerning the supervision of correspondence (letter writing) of the persons in custody and PTIC” which replaced the former Order of the SPSU #13 of 25.01.2006. Despite numerous faults of the norms contained in the former order, their failure to ensure confidentiality and efficiency of appeals, they have been transferred to the new order without any changes.

One of the bones of contention in the said document is the compulsory censorship of correspondence (with the exception of specific subjects). The CEC of Ukraine, as opposed to the old Correction and Labor Code of Ukraine supposedly banned the censorship replacing it with “review” (art. 113 CEC of Ukraine). By definition this review means search for the forbidden items and not reading of one’s letters. Nevertheless, the Order in question still retains the norm stipulating that “letters (that contain – author) the data which cannot be divulged, are not sent to the addressee, nor returned to the convicts or individuals in custody, but confiscated”. It means that а) CF administration is obliged to reveal this information by reading the letters; b) any information can be lawfully classified as “the data which cannot be divulged” at the administration’s discretion, thus opening the door to all sorts of local abuse. As a result, “unwelcome” letters simply won’t be sent out of the CF or delivered to the addressee.

The practice also shows, as will be demonstrated below, that often there is no proof of sending out the letters containing the information on illegal actions of the CF staff. Noteworthy the SPSU expressed its readiness to address the problem, even with the involvement of international experts.^[38] We are aware of the fact that the report prepared by the CE expert James Murdoch contains a lot of remarks which should be addressed by the SPSU. That is why we find the development, discussion and normative and practical implementation of the concept of the correspondence “immunity” most topical at the current stage. The social workers and Ukrposhta should be involved in the process as current perlustration of letters creates more problems for human rights and safety of the convicts and society instead of resolving them.

Meanwhile, some positive developments in the deputies’ law-making related to the penitentiary system can be traced. For example, passing of the law #3200 of 05.09.2013, submitted by the people’s deputies I.Lutsenko, A.Kozhemyakin and P.Petrenko will be instrumental in resolving many problems faced by the prisoners,^[39] specifically, their pensions, holding convicts in custody, visits and other gaps in the criminal-executive legislation in force.

The implementation of the norms or international law as a part of the national law is another matter. Our study showed lack of professionalism, coordination and efficiency in the measures aimed at the enforcement of the ECHR decisions with respect to violation of the prisoners’ rights within SPSU system and by the official in charge of the ECHR decisions.^[40] Hence many decisions are not enforced or are implemented only partially, while the problems identified by the court persist.

The same conclusion applies to the implementation of the recommendations formulated in the earlier and current CPT reports following the CPT delegations’ visits to Ukraine,^[41] which, according to the international law fall under the category of the “soft law”, and, although formally not obligatory, often become the main points of reference for the ECHR decisions against Ukraine and also a matter of concern for the Committee of Ministers of the CE.

The visit in December 2012 to Ukraine became an unprecedented event in the whole history of the Committee’s existence (almost 25 years of visits to 47 countries – members of the CE). The visit results were published in the public statement. This Committee’s competence is envisaged by the part 2, article 10 of the European convention against torture, inhuman or degrading treatment or punishment in cases when the national authorities refused to cooperate or to improve the situation taking into account Committee’s recommendations.

Over the whole period of its existence, the Committee had made only four public statements (Ukraine being the fourth country with respect to which the statement was made). It is, however, the first country to be publicly reprimanded for its failure to collaborate for the improvement of situation in the penitentiary institutions. Our country is really an exception in this sense, as usually the Committee is very cautious addressing the issues of torture in the penitentiary institutions. More often such reprimands are made with reference to militia and its departments. The Report, however, describes and highlights the tortures in the correctional facilities. CPT pointed out that the treatment of inmates held in Oleksiivka CF #25 and Stryzhava CF #81 is tantamount to the torture. The finding of a row and bats, wrapped in paper and plastic and used to beat the inmates in Stryzhava CF #81, was an unprecedented occasion for the Committee delegation.

The Report also revealed a whole range of systemic problems inherent for the national criminal-executive system. The conditions in the prisons, torture, unacceptable treatment of the inmates by the staff, corruption, the situation of male and female prisoners serving life sentence, unsatisfactory fulfillment of the job duties by the personnel are the issues that gave grounds for the Committee’s concern. Another matter of concern is the suspicion that the penitentiary department won’t be able to interpret the Committee’s recommendations correctly for their own use,^[42] which fact, naturally, can affect the efficiency of their implementation.^[43] The negligence of the SPSU and Ukrainian authorities as a whole is also confirmed by very superficial and insubstantial response to the Committee’s Report.^[44]

Torture and cruel treatment in the correctional facilities

The SPSU system still remains closed for public at large and for the journalists. Its closed nature provides incentives for the systematic violations of human rights. The inmates have no way of informing the prosecutor’s office of the violation of their rights, although the procedure is spelled out in the law. Even if such information reaches the prosecutor’s office, this latter often does not respond adequately to the instances of violations committed by the administration. The culprits continue to hold important offices and to commit new crimes. The people who dare to complain are subjected to torture, while new criminal cases against them are cooked up under the article 391 of the CC of Ukraine (malicious non-compliance with CF administration requests).

The practice of denying the attorney a meeting with the client is used by the SPSU administration in cases when the violation of human rights is obvious. An attorney can register certain violations (e.g. marks of bodily injuries) and provide legal assistance to a client in putting together a complaint to the prosecutor’s office, entailing legal qualification of the staff actions. Here is a typical example:

On August 19, 2013 about 7.00 pm a man called on the hot line of the UNHCHR, reporting that his life and health were threatened, as well as life and health of 15 other persons. He said he would agree to any public intervention, including the divulging of information and the names of the convicts if it can save their lives. The inmates of CF #81 I.Chepel, S.Muratov, P.Kopetsky, O.Antonovsky, R.Zverev, O.Kozak, V.Zamelyuk, Sh.Kosovan, V.Bovko and some other prisoners who refused to give their names are, according to them, in a most dire situation. The next day an attorney Natalya Gurkovska arrived in the correctional facility to meet her clients, but was denied entrance and visit without any grounds. On the same day the attorney submitted a claim of the criminal offense to the prosecutor’s office. On August 27, 2013 the attorney N. Gurkovska once again came to the Stryzhava CF #81 with the goal of providing legal assistance to the convicts who had complained to the human rights organization and submitted a written motion to the first deputy of the colony warden S.Lysak. This latter in contempt of the law, abusing his official status, denied the attorney performance of her professional duties. The inmates were denied their right to legal assistance. On November 1, 2013 Vinnytsia circuit administrative court satisfied the attorney’s claim and ordered the colony administration to let the attorney meet her clients. A criminal claim was filed against one of the petitioners for inciting the inmates to counteract the facility administration operation.

The European Committee for prevention of torture in its report following the visit to Ukraine in December 2012 ^[41] pointed out that cruel treatment of the inmates in Oleksiivka CF # 25 had become an inalienable function of maintaining order and counteracting prison subculture. The colony staff is using specially selected groups of prisoners to ensure docile behavior of other inmates since their first days of incarceration. The respondents complained of cruel treatment which can be classified as torture.

V.Bordun, DOB 1957, complained to KhHRG that he had been subjected to torture in Oleksiivka CF after he, availing himself of the opportunity to leave the premises, made public the facts of human rights violations taking place in the CF. (“Naked truth or an inside look at Kharkiv colony”ORD site, 21.06.2011). Despite KhHRG requests not to send V.Bordun back to the CF #25 to serve the rest of his sentence due to the conflict situation, he was brought back. Criminal proceedings were started against V.Bordun, with final verdict of 3 years of imprisonement. Currently he was serving 15-years term and had only 75 more days in prison prior to his release. Such actions of CF #25 administration can be classified unambiguously as revenge for his complaint.

We have been receiving the information on the violation of the inmates’ rights in the CF #25 for many years – through the persons who have been discharged or moved to other CF under the SPSU. Besides V.Bordun’s testimony, there is testimony of other inmates. During press-conference in UNIAN IA on 04.10.2013 the ex-convicts openly named the warden Khyrny and his deputy Popov as the organizers and perpetrators of the torture. Popov does it in person, while Khyrny uses his authority to incite other inmates subordinate to him as warden (“the boss”).

We sent a request for information to the Prosecutor’s General office to learn about the status of criminal proceedings # 42012220090000028-27-012 of December 12, 2012 under article 365 p. 2, mentioned by the convict V.Bordun in relation to the torture he was subjected to. He became the victim of torture for his refusal to report on other inmates. The ECHR decision in the case “Savenko vs. Ukraine” makes reference to a similar case. The administration of Temnivka CF #100 was trying to persuade S.Savenko to report any illegal activity of the other inmates. He refused. When the officials ran short of arguments, they resorted to torture. As a result, Savenko lost conscience and suffered a number of bodily injuries registered by the medical expert. Savenko’s attempts to complain of the administration’s actions brought no response. He was forced to say that the injuries were self-inflicted. But later, in court, he confessed that he had been forced to refute his own testimony and also showed the conclusion written by the expert with 37 years of professional experience to the effect that Savenko was by no means capable of inflicting the injuries himself.

About 10% of verdicts cause reasonable doubt as to their fairness

KhHRG has collected a number of cases which give grounds for serious doubts as to the validity of the verdict. Specifically it can be argued that individuals accused of homicide in fact did not kill their victims. The courts of higher instances have recalled the sentences passed by the internal courts in more than ten cases. The general scenario is as follows: the accused is subjected to torture so that he would confess to murder. If he manages to prove the violation of the article 3 of the European convention against torture and violation of the right to fair trial (i.e.obtaining evidence by unacceptable means) in the ECHR, then, in compliance with the court’s decision, the verdict based on illegally obtained evidence should be reversed. And this is what happens. The homicide investigation should start all over again. Blessed St. Augustin noticed as early as 4th century AD that the state without due and fair trial is not a state, but a pack of criminals. This statement remains most topical today.

On November 15, 2012 the European Court for Human Rights passed its decision in the case “Zamferesco vs. Ukraine” (claim # 30075/06). The Court found a violation of the article 3 of the Convention (cruel treatment in the militia precinct), violation of pp. 1 and 3(с) of the article 6 of the Convention (absence of legal aid starting with first interrogation) and violation of p. 1 of the article 6 of the Convention (the use of evidence obtained by cruel treatment with the goal of condemning the claimant). Let us remind that V.B.Zamferesco was sentenced to life term for double homicide. The charges in the case are based on the confession obtained by torture and psychological pressure imposed by militia officers. In court the defendant refuted his own testimony, but the court was implacable. The decision of the ECHR reads: “In this case the claimant was threatened with death. The threats were accompanied by beatings causing physical pain. This psychological and physical pressure was used to make him confess to the crimes”.

O.Rafalsky has been serving life sentence for 12 years. The fact of torture used against Rafalsky and other suspects in the case to make them confess to serial killings is obvious. Despite the Verbal Note sent to the Ukrainian government as far back as 2009 by the UNHCHR, resolutions of two parliamentary Committees (for counteracting corruption and legislative support of human rights protection) the correspondence with the prosecutor’s office and courts is going on; the courts now and then invalidate the resolutions denying criminal proceeding against the official torturers, while Rafalsky is still anticipating favorable decision of the ECHR.

V.Panasenko is serving life sentence for attempted murder of the “Shuvar” market director in 2006, during which a child died. The charges brought against the accused were based exclusively on the testimony of mentally sick person, who named first one perpetrator, then – in a written statement – another one, and, finally, Panasenko, as third potential killer. On top of everything that person refuted his own testimony when testifying in court and named “a real culprit”, in his own words. Let us remind that on May 15, 2012 the European Court made a decision in the case “Kaverzin vs. Ukraine”, pointing out that lack of prosecutor’s efficient investigation of the reported tortures is a systemic violation of article 3 of the Convention with respect to the procedural action.

I. Nechyporuk spent almost 8 years behind the bars, having been convicted for a crime he did not commit. According to the EUHR, his own 5 confessions, obtained with the help of beatings and torture, constituted the only evidence used in the case.^[45] Another suspect was also accused of felony – O.Motsny, who also confessed after being tortured. The case was reviewed following the ECHR decision and I.Nechyporuk was acquitted. Now he is free, but Motsny, who did not complain to the European Court, is still serving his term on the same charges. Unfortunately, no one but Motsny himself can act under the circumstances. When, following the ECHR decision, the Nechyporuk case was revised by the Supreme Court, one of the judges expressed an opinion that Motsny’s verdict should be reversed as well. Lamentably, this judge was not supported by the others.

Ukraine has established an infamous record – it has more prisoners serving life sentence than Russia. As of today, their number in this country amounts to 1845, while in Russian Federation they have 1841 prisoners serving life term, while the total number of prisoners in Ukraine amounts approximately to 140 thousand as opposed to over 800 thousand in Russia. These figures are accounted for, among other things, by complicated pardon procedure and inefficient mechanism for its application, specifically, lack of conditional release (parole) mechanism with respect to prisoners sentenced for life. The expediency of such mechanism is spelled out in the Recommendations of the Cabinet of Ministers of CE (Recommendation Rec(2003)22 on conditional release (parole)): “In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.” It is also noteworthy that under this Recommendation the conditional release (parole) does not include amnesty or pardon (Rec(2003)22-Appendix par.1). The legislation in force clearly violates p. 12 of the CE Resolution (76) 2 on the treatment of long-term prisoners on 17 February 1976 (at the 254th meeting of the Ministers’ Deputies), which enumerates the requirements to be met for the regular review of life sentences, including the obligatory review after 8 – 14 years of incarceration. Under the current law pardon for such prisoners can be considered only after 20 years of imprisonment, while regular review is not stipulated at all, except on their own motions. Besides, under the decision of Big Chamber of the ECHR in Vinter and Others v. the UK,^[46] passed this year, the lack of “real perspective of release” for the prisoners serving life term is a violation of article 3 of the European Convention on protection of rights and fundamental freedoms.

Ukraine also lacks the procedure for correcting court errors. The analysis of the Supreme Court of Ukraine practices and of the respective procedural law leads one to the following conclusions. The competences vested in the Supreme Court of Ukraine attempt to combine the control over norms with court protection in the criminal cases by means of court rulings’ revision. However, the legal levers available to the Supreme Court are not enough for the exercising of the said competences. The use of the means with subjective components (arbitrary application of the norms of material law) and the institute of cases’ submission to the SC substantially complicated practical exercising of public right to court protection and decreased its efficiency. Removing some of the SC competences (i.e. the use of procedural law norms and some portion of material law norms) is contrary to logic and the principles of legal determination and constitutional status of the SC. These developments made the SC competences “partial”, while the use of authority to revise the procedural law norms led to incapacity in fulfilling the competences the SC enjoys as judicial entity. Therefore, the essence of the SC competences does not fully agree with its constitutional status and rights of public to court protection guaranteed by the Constitution of Ukraine.

Considering all these facts, the authority of the SC of Ukraine should be restituted to the status it had prior to 2010 reform. The Supreme Court itself should define the boundaries of its competences. It means that the law should be changed, restituting the exclusive proceedings which existed prior to 2010 and vesting respective competences in the SC.

Right to correspondence

On December 1, 2012 V.Kolesnikov, sentenced to 10 years in prison for a homicide, was transferred from CF #38 (Lugansk oblast’) to psycho-neurological ward of the oblast’ hospital under Lugansk investigation isolation center. The transfer was the result of the dry hunger strike announced by the prisoner as a mean of protest against administration which has detained his cassation appeal, which, according to him, he could not send out for the whole term of his stay in PTIC: “I, Kolesnikov Vladimir Fedorovych, refuse to undergo medical treatment as I do not consider myself sick. Refusal to eat is an extreme measure in my attempts to have a Cassation Court hearing”. A client of KhHRG V.Nechyporenko held in custody in Sumy PTIC went on hunger strike because the letters he received from the ECHR were not delivered to him; his power of attorney was not sent out and he was subject to forced treatment.

The prisoners often complain that the staff of the SPSU facilities often hinder their correspondence, especially, when it contains the prisoners’ complaints referring to administrations’’s actions or lack of thereof. How letters are currently sent out from the SPSU facilities? A prisoner held in PTIC or any other SPSU facility hands in his correspondence directly to a staff member. If a prisoner is in re-socialization or rehabilitation ward, he can put his letters into a special box. In both cases the prisoner is unable to prove either the fact of sending a letter or the date when it was done.

On September 18, 2013 an Ombudsman meeting with experts addressing the issues of convicts’ and prisoners’ rights to correspondence, took place in the Ombudsman office. The stake-holders from the public and non-governmental organizations (Ombudsman’s representatives, HR organizations, SPSU, Ministry of Justice, Prosecutor’s General office) participated in it. The discussion concerned the technical aspects of registering the correspondence. We believe that the managers of some SPSU institutions are aware of the importance of this issue and register the correspondence. On November 7, 2013 the monitoring group visited the only correctional facility for people with disabilities in Ukraine – Sofiivka CF #45 in Dnipropetrovsk oblast’. It was a training tour, at the end of the course “Monitoring of the adherence to human rights in the places of incarceration” carried out within the framework of the program “Understanding human rights” supported by the Swiss Embassy in Ukraine. The facility warden V.Khalavka informed the group that in order to avoid any complaints that the correspondence had not been sent out or had been delayed a CF operative in charge meets the inmates on the weekly basis. A prisoner would come to a meeting and hand in his letter in the sealed envelope personally. The official makes a respective entry in the log and gives a prisoner the registration number. This practice is worth disseminating in other colonies as well as a temporary solution to the problem involving prisoners’ right to unimpeded correspondence.

2012

The legislative amendments

The Presidential Decree №631/2012 of November 8, 2012 approved the new State Policy Concept for the reforming of the State Penitentiary Service of Ukraine. This normative document in fact replaces the former Decree of the President of Ukraine “On the State Policy Concept for the reforming of the State Penitentiary Service of Ukraine” № 401/2008 of April 25, 2008.

The analysis of the document, however, does not show any progress in comparison with the former version. Some provisions just duplicate the earlier ones, while the others do not contain any substantial differences. Certain positive features of the former Decree were not taken into account in the new one.

Thus, the norm requiring the development of the new models for the penitentiary institutions for women and juvenile delinquents was eliminated, despite the fact that it has never been implemented in the penitentiary practices.

The new Concept clearly defines current problems, but lacks the definition of specific tasks for their resolving.

The Concept mentions that although the inconsistency of prisoners’ and persons’ in custody keeping with the national law and European standards has been stressed many a time in the Reports of the European Committee for prevention of torture and inhuman or degrading treatment or punishment (hereinafter – the Committee), the majority of its recommendations are not taken into account, and the Concept does not even mention the need to comply with them.

The latest report was published by the Committee in late 2011.^[47] The majority of recommendations contained in it, were not taken into account by Ukraine, and specifically, by the SPSU. The negative impact of this inaction is enhanced by the fact that the Committee has already provided these recommendations in its earlier reports based on the earlier monitoring. E.g. the issues of short-term and long-term visits, confidentiality of correspondence, conditions and restrictions imposed in the disciplinary cells etc. have not been resolved. And all these problems are within the competence of SPSU, as the majority of the criticized norms are the norms of SPSU sublegal acts.

The same applies to the European Court on Human Rights’ Decisions, which establish the violation of the convicts’ rights, but are disregarded by the authorities. These decisions are numerous, because the Court, in its rulings, refers to the standards, developed by the Committee. E.g. the decision on the case “Trosin vs. Ukraine”, in which the Court condemned Ukrainian practice of jail visits, namely, the norm under which the number of family visits is automatically limited (i.e. only certain number of visits is allowed to a prisoner for a given time period), without any consideration of individual risks.^[48]

One of the most negative features of the Concepts is the idea of self-sufficient operation of the penitentiary institutions to reduce the burden on the state budget. The practices of other countries, as well as long-term Ukrainian experience shows that the prioritization of the economic goals as opposed to rehabilitative ones in the prisoners’ labor cannot be justified and in the end of the day does not meet neither economical nor rehabilitative goals. Modern scholars point out that the idea of self-sufficiency collapsed in the soviet times and will be surely doomed in the future.^[49]

Besides, the Concept contains provisions which, even from the point of view of criminal-penal law, are unclear and too general. E.g. modernization of the production facilities within penitentiary institutions and the improvement of vocational training for the prisoners supposedly will be achieved by the improvement of operational principles of the said facilities under penitentiary institutions.

The Concept stipulates compulsory social/pedagogical support and social and psychological aid for the convicts and persons in custody. Keeping in mind that the persons in custody are not considered guilty of a felony prior to the court’s verdict, it is unclear, how a compulsory social/pedagogical support shall be enforced with regards to these persons.

There are still “blank spots” in the SPSU regulations on the order of delivering and serving the sentence. The experts insist that the administration of the penitentiary institutions should not use technical means of control and supervision unless a special normative-legal act(s) is/are adopted. This conclusion is based on the following reasoning.^[50] Fist, under Article 103.3 of the Criminal Procedural Code, the list of technical means of control and supervision should be defined by the SPSU legal acts. The same acts should determine the procedure for their use. As far as we know, no respective normative acts are currently in effect. Therefore, it is not clear, what technical means can be described as those of control and supervision; which can be used in the correctional facilities, and what the procedure for their use is. Hence the use of the said means is to be considered illegal unless respective legal act is adopted.

Nevertheless, the courts justify the illegal SPSU practice. On October 30, the Circuit Court of Kyiv passed a decision refusing to satisfy in the full scope the claim of Yu.Tymoshenko against the SPSU actions. Specifically, the court sustained that the system of video-observation installed by the SPSU in the premises where the convicts are kept, is legal.^[51] And, judging from the informational release provided by the SPSU, the agency has no intention of complying with CPC of Ukraine referring to the court decision.

The agency many a time stated that the law in force does not allow phone calls for the prisoners being treated in medical institutions under the Ministry of Health of Ukraine,^[52] instead of adopting a respective act.

The Decree of the Ministry of Justice of Ukraine, Ministry of Social Policy of Ukraine, Ministry of Education and Science, Young Adults and Sports of Ukraine, Ministry of Health of Ukraine, Ministry of Interior of Ukraine № 478/5 / 180 / 375 / 212 / 258 of 28.03.2012 established the Order for cooperation between the penitentiary institutions and subjects of social care in the preparation of the persons serving their terms, to discharge. The new Decree invalidated three normative documents which earlier regulated specific issues of social adaptation for the persons discharged from the penitentiary institutions.

The new Order looks like a compilation of the certain norms of the three former orders without introducing any substantial changes; it testifies rather to the authorities’ mimicry than their real desire to introduce changes. Moreover, many norms which were in force before, are completely ignored by this Decree, and, consequently, have become invalid, debilitating further an imperfect system of the social adjustment for the ex-convicts. The few novelties, introduced by the Decree, in our opinion, have serious faults.

Thus, Section 2 of the Order addressing collaboration between the centers of social services for families, children and young adults and penitentiary institutions in providing social services for the children and young adults discharged from the penitentiary institutions was eliminated. The Section defined the possible ways of co-operation, specifically, exchange of information on preparing children and young adults to discharge from prison; helping in social rehabilitation of the children and young adults; involvement of non-governmental organizations of children and young adults, companies, institutions, other organizations irrespective of form of property, charity groups, volunteers and other individuals in the social mentoring.

Altogether a lot of positive norms from the earlier Decrees have been canceled. This fact should serve as a warning against precipitated law-making in the future.

On February, 08, 2012 the Ministry of Justice of Ukraine adopted a №222/5 “On approving the Instruction on the order of assignment, placement and transfers of the convicts between the penitentiary institutions (hereinafter – the Instruction)”, which annulled the former Order of the State Department of Ukraine on penitentiary system № 261 of 16.12.2003 “On approving the Instruction on the order of assignment, placement and transfers of the convicts between the penitentiary institutions”. The new document contains only a few unsubstantial changes in the regulations of convicts’ assignment to penitentiary institutions and looks like a mockery of the law-making activity undertaken by the Ministry of Justice of Ukraine, which just changed the title pages of the numerous former SPSU normative documents without changing their contents.

Similarly, the Decree of the State Department of Ukraine on penitentiary system №162 of 10.08.2000 “Instruction on the order of providing personal belongings for the convicts serving their sentence in the penitentiary institutions and pretrial detention centers” was replaced by the Decree of the Ministry of Justice of Ukraine № 280/5 of 20.02.2012 “On approving the Order for providing personal belongings and adherence to norms of ownership for the convicts serving their sentence in the penitentiary institutions and pretrial detention centers” . The Ministry of Justice introduced no substantial changes into the norms for personal belongings, but retained the outlandish norms concerning personal belongings of the convicts. Thus, under the Decree, the female convicts are entitled to two pairs of cotton underpants in two years. The same norm applies to male convicts. These latter are entitled to one shirt and 4 pairs of socks in two years.^[53] This norm goes hand in hand with another anti-hygienic provision, establishing for convicts the possibility of taking one shower a week. This norm is still in place despite the fact that it has been criticized many times by the Committee.

An attempt to fake the law-making activity can be detected in the Ministry’s of Justice new Order for submitting pardon appeals to the Administration of the President of Ukraine and for implementing President’s of Ukraine decrees granting pardon (№1439/5, of 28.09.2012). According to the Ministry’s of Justice press-service, this Order among other things contains more humane provisions with regards to prisoners serving life sentencehttp://www.kmu.gov.ua/control/ru/publish/article?art_id=245746640&cat_id=244845045. This “humanization” became possible allegedly because earlier motion for pardon could be submitted only after 20 years of the term, while currently this restriction has been abolished. The Ministry of Justice, however, never mentions that p. 4, part 2 of the Regulations on pardon currently in force (Presidential Decree of 16.09.2010, which has higher legal force than the Ministerial Order), the motion for pardon of the prisoners sentenced for life can be submitted only after at least 20 years of their term.

Habeas corpus still remains a problem for the convicts who need to participate in the hearings on civil jurisdiction. Addressing this issue, the Constitutional Court of Ukraine passed a ruling on 12.04.2012 in the case on constitutional appeal of the citizen A.Troyan concerning official interpretation of Article 24 of the Constitution of Ukraine. (The case re: equality of parties to the trial).^[54] Mr.Troyan approached the CCU seeking official interpretation of Article 24 of the Constitution of Ukraine concerning the right of an incarcerated convict to be brought to court to participate in the hearing of civil jurisdiction (the equal rights of parties to the lawsuit). The Court responded that “personal participation of a convict serving his/her sentence in a penitentiary institution, as a party to the trial, meets the requirement of complete, comprehensive, objective and un-biased hearing. This participation of a convict, as a party to the cases heard in the courts of all jurisdictions, specializations and instances should be ensured by the respective procedural law. Decision on a convict’s participation as a party to the trial should be made by a court in the order and under conditions determined by the respective procedural law.” Hence the convict has “the equal right to protection of his rights and freedoms in court and to participation in the hearing of his case in the order defined by the respective procedural law in the courts of all jurisdictions, specializations and instances”. So, on the one hand the Court ruled that the convict has the right to participate in the hearing on his case, but only in accordance with the order established by the respective procedural law. But the very core of the problem lies in the fact that neither civil procedural, nor administrative procedural law properly regulates this matter. That is why the CCU Decision, instead of improving the situation, provided formal grounds for depriving the convicts of their right to participate in the hearings on their cases until the respective procedural law is passed.

The quality of law-making activity in the criminal justice area with respect to the international commitments of Ukraine also remains poor. E.g. Ukraine failed to send representatives to the Expert Group Meeting on the Standard Minimum Rules for the Treatment of Prisoners (Vienna, 31.01.2012-02.02.2012), attended by 143 persons from 52 countries-UN members. Besides, 28 UN members, Ukraine included, responded to the call for sharing best practices in penitentiary system. However, Ukrainian best practices were not taken into consideration in developing Preliminary note (working document), as opposed to best practices of other countries.^[55] And there is no wonder, considering the quality of materials submitted by Ukraine. The recent answer to the call for best practices in penitentiary system sent out by group of experts on revision of Minimum standard rules for the treatment of the prisoners, prior to the Expert group meeting on December 12–13, 2012. In comparison with 35 documents submitted by other countries (including the states with the lowest economic development level), Ukrainian response looks simply ridiculous. Instead of referring to the norms of national legislation (like everyone else did), the Ukraine’s permanent mission to international organizations in Vienna stated “According to information provided by the Security Service of Ukraine, the norms for the treatment of convicts and persons in custody are determined by the Law of Ukraine “On Security Service of Ukraine”, Law of Ukraine “On Counter-intelligence” and Law of Ukraine “On prior incarceration”.^[56] It is not only a formal response, which does not clarify the meaning of the respective acts, but also a nonsensical manipulation of the national legislation with respect to the prisoners and the convicts.

Systemic violations of human rights

In this section we will focus on systemic violations of human rights, which remain unchanged for many years, while SPSU does not take any steps to improve the situation.^[57]

1) Right to protection.

The Supreme Rada Ombudsman V.Lutkovska was approached by Iryna Lutsenko, the spouse of ex-Minister of Interior Yu.Lutsenko, serving his sentence in Mena correctional facility №91. In her open letter Iryna Lutsenko complained that the facility administration categorically refuses to grant the prisoner the opportunity to see his attorney. She stressed that after Yu.Lutsenko’s transfer to the facility №91 he did not have a single confidential meeting with either his lawyer or his public attorney within the framework of criminal investigation. All the meetings took place in the common area intended for short visits, without any heed of confidentiality right. A whole range of normative documents regulating the SPSU operation guarantees the convict’s right to a confidential meeting with his attorney. Lamentably these norms are ignored by the administration of the penitentiary institutions. We tried to draw attention to this fact many a time, but the violation of this right can be classified as systemic.

2) Tortures and cruel treatment

а) The “famous” Dnipropetrovsk correctional facility No89 (hereinafter – DCF-89) ranks first among Ukrainian penitentiary institutions as to the number of violations of human rights reported over the last two years. It is in this facility that mass beatings of the inmates by the SPSU special unit occurred, while the state officials remained inert. In March of this year the inmates with the open form of TB announced hunger strike. They published a video with their commentaries demonstrating horrible conditions in which they are kept. The events in DCF-89 are described in detail in the section addressing fight against torture.

b) An outrageous beating of an inmate in the pretrial detention center №13 in Kyiv. That’s how the UNHCR press-release “Another mandate refugee of UNHCR, protected by the European Court on Human Rights which forbade Ukraine from deporting him to the country of origin, was beaten severely in the pretrial detention center №13 in Kyiv. Now he is in the hospital, in custody, manacled to his bed. His serious injuries caused a long-term loss of consciousness. UNHCR hopes that the refugee will be treated humanely and not sent back to the prison without a thorough medical examination for possible internal injuries. UNHCR appealed to the SPSU and law-enforcement bodies to instigate immediate transparent proceeding for the investigation of this hideous crime and sue the culprits, who failed to ensure the protection of a person in custody in the state penitentiary institution.”

By pure coincidence the Ukrainian Helsinki Union on Human Rights’ attorney O.Levitsky, who defended the refugee, almost found himself in the epicenter of the incident. To be more exact, he happened to arrive at the crime scene when his client was already choking in the pool of blood. Apparently his arrival prevented the criminals from accomplishing their intention. “On August 03, 2012 in the pretrial detention center №13 in Kyiv my defendant A.U.H. was savagely beaten. As a result he suffered serious body injuries, threatening to his life. It is possible that the perpetrators intended to cause my defendant’s death”. This is an excerpt from the attorney’s Levitsky’s statement submitted to the Prosecutor’s office of Kyiv with respect to this outrageous and brazen crime, committed in the state institution, i.e. a pretrial detention center. The beating happened not in a cell (where it is impossible to reconstruct the crime, because the victim would negate the fact of beating explaining that he e.g. “fell from the bed”), but in a public place, with other people present. The attorney’s statement leads one to a conclusion: the Lukianivka incident is unprecedented, and the attorney might have become an active participant in it, had he not been delayed seeking permission (unnecessary, in his opinion) for a visit. Taking into consideration the nature and severity of body injuries, one could conclude that several persons took part in the premeditated beating. The event occurred in the pretrial detention center under SPSU jurisdiction. It means that only a convict, detained there as preventive punishment measure, staff and operatives from the Ministry of Interior or Security Service, attorneys (family members), defending their clients in the course of investigation, can enter the premises. In other words, the number of people authorized to visit, or detained in the center, is limited. Personal safety in Ukraine is not guaranteed so far. No one can feel safe anywhere. The attorneys need protection as well as their clients.

c) We stressed many a time that the use of armed masked commandos to conduct searches in SPSU institutions is unacceptable, irrespective of their affiliation – a unit, a special subdivision etc. There is no need to employ specialized SPSU units for the searches in the pretrial detention centers and in correctional facilities. They only intimidate the inmates in violation of their human rights. The European Court on Human Rights classifies these practices as violation of Article 3 of the Convention on Protection of Human Rights and Fundamental Freedoms (torture, cruel treatment). The case “Davydov et al. vs Ukraine” provides a most vivid example in this context (we dwelt on this case in detail in our previous report). Nevertheless, this practice continues, and in 2012 resonant events in Kopytchyntsy correctional facility № 112 occurred (see section on fight against torture for more detail).^[57]

d) On March17, information about beatings of inmates and killing of Taras Voytsekhovsky in Bucha correctional facility was published in Ukrainian on-line media. “As became known, on March 16, 2012 a man was killed in Bucha correctional facility № 85 in Kyiv oblast’. A convict was killed in BCF; another inmate is in the hospital. They were beaten by the facility staff.” –informed the source.” The deceased Taras Voytsekhovsky was born in 1985. Another victim – Serhiy Telima, born in 1987, ended up in the hospital as a result of the beating”. Another source informed that the facility administration tries to hide the fact of beating. The officials claim that, instead of a quarrel between intoxicated convicts and their guards an ethylene poisoning of the convicts actually occurred. The journalist of Kharkiv human rights’ protection group informational bulletin “Human Rights” A.Didenko together with the lawyer O.Sapozhnikova conducted their own investigation and, having talked with a victim and witnesses, found out the following: “The deputy warden of the CF detained Voytsekhovsky and Telima around 6:00 pm. They were put into a cage-like room and the facility guards started beating them. The sergeants known among convicts as “Styopa Voropay, Karate-man and Leonidovich”, as well as the first deputy of the warden Lohovitsky participated in the beating. Serhiy was kicked in the stomach (liver area) and collapsed. They resuscitated him pouring water on him. They first beat Taras in the “cage”, then dragged him “like a bag”, unconscious into the disciplinary cell, located about 60 m from the main building. Serhiy came to his senses in the hospital unit, where he is currently staying, complaining of liver ache, nausea and vomiting, while Taras did not survive tortures and died. The evidence of numerous injuries was found on his body.” The witnesses under condition of their anonymity testified that they heard the screams and sounds of beating taking place inside the premises. The SPSU, nevertheless, divulged another version of the incident. The prisoners, allegedly, consumed alcoholic beverages of bad quality and suffered injuries as a result of numerous fallings. The administration also put psychological pressure on Taras’ mother. As a result, the body was cremated immediately. However, while the body was in the morgue, the journalists managed to take pictures of Taras Voytsekhovsky’s disfigured face. The photos were made public and attached to the petition to the Prosecutor’s office requesting criminal investigation. The Prosecutor’s office refused to instigate proceeding due to the lack of corpus delicti in the staff’s action. Nota bene - in its Decision on the case “Kaverzin vs. Ukraine” the European Court pointed out that the lack of efficient investigation of the torture by the Prosecutor’s office in Ukraine is a systemic violation of Article 3 of the Convention for Protection of Human Rights and Fundamental Freedoms.^[57]

e) The Report of the European Committee under the Council of Europe for prevention of torture and inhuman or degrading treatment or punishment was also made public. It was based on the results of monitoring visits to Kyiv and Kharkiv pretrial detention centers between November 29 and December 6, 2011. The authors of the document stated that numerous violations of the prisoners’ rights in pretrial detention centers have been revealed. “They are beaten, sometimes with the clubs, while in custody and during interrogations. Sometimes they are subjected to treatment tantamount to torture – electrical shock, suffocation with the plastic bags or gas masks”. The Report reveals that prisoners are threatened with arms, and some of them come from interrogations with injuries. The monitors also criticized the conditions in which the prisoners are kept. As an example, they described a cell in Kharkiv pretrial detention center, where 44 inmates are kept, while there is enough room for 28 only. As a result, the inmates have to take turns to sleep. “Therefore, one can arrive to the conclusion that a person kept in pretrial detention center is subject to the risk of cruel treatment” summed up the monitors. In 2012 all the observations made in this report still applied.

f) Nevertheless, in some cases of human rights’ violations the Prosecutor’s office responds differently. E.g. on the fact of the use of violence against the prisoners in the CF № 77, city of Berdyansk, Zaporizhzhya oblast’, the criminal proceedings were instigated. On February 17 several prisoners of the correctional facility № 77 of the minimum security level refused to take their meals during breakfast. On February 19 press-service of the SPSU for Zaporizhzhya oblast’ informed that prisoners protested mainly against low temperature inside the premises, conditions of work and meals, and that, allegedly, after things have been explained to the inmates they agreed to eat by the evening of February 18. The hunger strike of the prisoners ended with criminal proceedings, instigated by Berdyansk regional Prosecutor following the inspection of the CF. According to information offered by the deputy Prosecutor for Zaporizhzhya oblast’ A.Kudrayavtsev on February 20, the criminal proceedings were instigated on two accusations – the use of violence against prisoners and serious breach of the labor law. The criminal case was filed under Article 172.1 (gross violation of the labor law) and Article 365.2 (Abuse of power or authority, if accompanied by violence, use of arms and painful and humiliating actions, without evidence of torture).

3) Right to privacy:

а) Let’s remind you that on October 3 the Parliamentary Assembly of the Council of Europe defined the meaning of the term “political prisoners”. They are persons deprived of personal freedom, if the incarceration was committed with the violation of one of the fundamental rights guaranteed by the European Convention on Human Rights. However, the recent political persecutions, which have become systemic in Ukraine over the last years, testify to the fact that any incarcerated person, without exception, is subject to the violation of his/her rights, irrespective of the penitentiary institution where this person is imprisoned. E.g. the video showing Yu.Tymoshenko was made public and caused social outburst and outrage with the SPSU’s actions. According to Ye.Zakharov, co-chair of Kharkiv Human Rights Group, “Showing a video of a person in jail is violating his/her privacy. The person cannot be filmed on video without his/her consent, especially when that person is a woman staying in the hospital and in such condition. Moreover, the video was widely disseminated. It is a serious violation of the right to privacy. Such gross interference into the private life is prohibited by the Constitution and entails criminal liability. Besides, it is immoral”.

b) On May 24, Karina Klevzhits tried once more to visit her husband in the Correctional Facility No 55. She was determined to meet with her husband, become pregnant and give birth to their child. The facility administration, however, refused the meeting, claiming that Yu.Klevzhits is staying in TB ward. Karina Klevzhits approached the Prosecutor’s office and Central office of the SPSU, claiming that her rights are violated; she also intends to appeal to the European Court on Human Rights, as she believes that the government of Ukraine in this case is violating Article 8 of the European Convention – the right to private and family life.

4) Right to medical assistance.

Providing medical care for the persons in custody, their transfer to civil hospitals for treatment, duration of the process of discharge on health grounds under Article 84 of the Criminal code of Ukraine still remain serious problems.

а) On March 16, the European Court on Human Rights passed a decision in compliance with rule 39 of the Regulations on providing immediate medical care for Yu.Tymoshenko in the respective medical institution. Some lawyers claimed that it signifies the need for her immediate transfer to a hospital, while the officials, and, specifically, the Minister of Justice Lavrinovich, believed that there was no need for the transfer, as the necessary care could be provided in the CF. The head of the UHUHR Ye.Zakharov commented on the event “This Regulations’ provision exists and has been applied many times with respect to Ukraine and its citizens. We used it a lot of times. The European Court on Human Rights sends the same-day fax under the headline “The European Court’s Decision on urgent measures”. This document is submitted to the Ministry of Justice of Ukraine, department for the support of cases in the European Court on Human Rights”. The Decisions of the European Court on Human Rights are compulsory for the countries that ratified the European Convention. On July 17, 1997 the Supreme Rada of Ukraine ratified the European Convention on Protection of Human Rights and Fundamental Freedoms.

b) However to save a person’s life it is not enough to release him/her from custody. Having to deal with health care system this person faces another. In a given case the human life was saved, but generally the state has to pay attention to the needs of terminally ill people, especially those released from custody and needing immediate professional help. On April 24 the European Court on Human Rights passed another recommendation under rule 39 of the Court’s Regulations with respect to immediate medical care for V.V. Velichko. The UHUHR attorney O.Sapozhnikova stated in her petition to the Court that “Since October 22, 2010 the petitioner had been kept in custody in Ismail pretrial detention center. I.e. for two years he stayed in this center without medical care. His health condition deteriorated and gives grounds for concern, as the petitioner’s disease, if not treated, can lead to lethal outcome. The petitioner has 3rd category of disability, no family or other relatives”. After the preventive incarceration was substituted with conditional release with written statement that he would not leave the place, Velichko was admitted to Odessa oblast’ hospital, where he undergoes his treatment.

5) Right to work.

The statements made by penitentiary system officials claiming that the inmates of their institutions can master a new profession and earn money for food and cigarettes, try to conceal hard labor conditions for the convicts and violations of their right, stated the human rights’ activists in their interview to Radio Liberty. “The convicts themselves are reluctant to share this information – admits the program coordinator for Kharkiv Human Rights Group A.Didenko. – The conditions of their work in many enterprises fail to meet even most basic safety norms”. The expert divulged that sometimes people have to work 12 hours a day. “As of today many enterprises under the penitentiary system operate within “shadow economy”. People’s salaries are not transferred to their accounts; they are paid in kind – with cigarettes, tea or something else. For me, it signifies that the enterprise evades taxes” – stated human rights activist A. Didenko.

Public control in the penitentiary institutions

1)National preventive mechanism against torture in prisons

For many years we underlined in our reports that the lack of public control over the SPSU operation is one of the major factors contributing to the systemic violations of human rights in this domain. Starting 2006, when Ukraine ratified the provisions of the Facultative Protocol to the UN Convention against torture, the civil society advocates systematically insisted that Ukraine should introduce one or several national prevention mechanisms against torture (hereinafter NPM). We tried to draw the authorities’ attention to this issue through public events, street actions, public statements, annual reports. The experts from NGOs took part in developing draft laws on NPM. Notwithstanding, over the course of 6 years Ukraine never managed to introduce the NPM in compliance with the provisions of Facultative Protocol to the UN Convention against torture. Finally a new Ombudsman under Supreme Radar of Ukraine Valeriya Lutkovska was elected to the office. The thing is, V.Lutkovska used to lobby public initiatives and the need to devise NPM draft law as a deputy Minister of Justice, but the actual law was never passed. That’s why one of the first initiatives of the new Ombudsman was the introduction of the NPM under “ombudsman+” model. The NPM Department was set up; all-Ukrainian training programs were launched to ensure public participation in the NPM monitoring plan, which would allow for nation-wide public control and monitoring of numerous and diverse penitentiary institutions in Ukraine. We hope that the NPM system will bring the public monitoring of prisons to the new level, ensuring high quality, systematic, pre-planned and surprise visits to the institutions under the SPSU.

The most crucial issue, though, is the attitude of bureaucrats towards members of public and cooperation in the human rights area, specifically the lack of good will among the officials needed for transforming the jails into civilized penitentiary institutions with due adherence to rights and lawful interests of persons in custody. On the one hand, the public representatives currently have the legal guarantees to visit these institutions without preliminary notification; respond to the instances of human rights violations; conduct monitoring on adherence to human rights etc. The members of Observing Commissions do that (we’ll describe the details of their activities below), but in practice this structure is inefficient due to several reasons. First, the Observing Commissions are formed predominantly of the former SPSU employees or public servants who have no intention to monitor penitentiary institutions with due efficiency; or of individuals who are ignorant of the human rights and interests of the people in custody. Second, the SPSU wardens have no positive incentives to open their institutions for public; they are unwilling to make their deficiencies known to public or to resolve the issues related to adherence to human rights in joint effort with the members of civil society.

The thing is the country leadership as well as the heads of SPSU system miss simple logic here. If the SPSU problems related to the conditions of the prisoners, medical care, release on parole, disciplinary punishments etc. become known to the public from the direct source of information, i.e. through regular visits of penitentiary institutions by civil society activists, then public at large will be aware of these problems and eager to resolve them. Next, public and authorities could join their efforts in seeking the ways for addressing the said problems. In practice, however, the openness of penitentiary institutions’ system is only declared by the SPSU that claims that it is ready for the humanitarian changes and adherence to human rights, while in fact it is not implemented. The broader the opportunities and competences of public activists in visiting the penitentiary institutions, the better is constructive dialogue and cooperation.

Let’s remind the reader that actual unchangeable figure representing the number of persons serving their sentence in penitentiary institutions is the product of society, and criminogenic situation in the country will not improve unless both the country leadership and the public come to understand that this “social product” should be released from jail with a new positive quality, new attitude towards the crime – this is the main goal of punishment. That is why public participation in psychological transformation of the prisoners should not be restricted, while the state should by all means promote fruitful cooperation and encourage public activists to participate in the reforming of the SPSU system. So far this system remains predominantly closed to the public, and we can only hope that eventually the situation will change for the better and the SPSU leaders will change their hostile attitude toward citizens and journalists and will not try to conceal the faults of their operation from public at large.

2) Observing commissions

Despite the efforts of the civil society to move forward the Observing Commissions’ operation by training future members for these bodies, compiling informational and analytical materials, the activities of the said commissions still remain a mockery of the notion of public control. Nevertheless, under the Criminal Procedural Code of Ukraine the Observing Commissions (OC), inefficient and imperfect as they are, so far remain the only bodies which exercise control over the observance of prisoners’ human rights.

In August – December 2012, questionnaires were sent to 9 out of 42 Kharkiv oblast’ OC. The addresses of the OC and the names of their heads were obtained from the official site of the SPSU for Kharkiv oblast’, which by now ceased to exist and was reopened under the new e-address.^[58] The questionnaires contained questions concerning the names and personal data of the rayon OC head, his deputies, members and secretary; its operation plan for six months (a year); scheduled OC meetings, including the meetings in the penitentiary institutions, planned activities with respect to parole release; substitution of sentence with a milder one in the penitentiary institution under commission’s supervision (including the meetings of branch commissions).

Not a single commission managed to provide exhaustive answers to all the questions. The letters to the Commissions in Dzerzhynsky and Kharkivsky districts were returned with the stamp “the addressee not found”, or “no addressee at this address”. It can be explained by the fact that the former head of the commission was dismissed and replaced by a new person, while the letter was still addressed to him. But we also included the names provided at Kharkiv SPSU Department site. Interestingly, only the heads of three commissions out of nine remained the same. Anyway, as opposed to Dzerzhynsky and Kharkivsky districts’ commissions, other OC managed to respond, even, though “the addressee was not found at this address”.

The OC of Balakliysky district failed to respond, although the letter was received by the addressee. The other responses were delayed. So much for the “accessibility” of the OC for rank-and-file citizens! It becomes clear why the prisoners find it pointless to address the commissions complaining of the human rights violations. Apparently they can hardly expect any response at all, let alone adequate reaction to the complaint.

Now, let’s analyze the provided responses.

1. The Observing Commission in Chervonozavodsky district (Kharikiv). Membership: 7 persons. Representatives of the community – 3 members (under p. 9 of the OC Regulations public members should constitute at least half of the total number). It is typical that the action plan for 6 months contains no dates (timeframes) for any events. There is a notion that a given event takes place “on the regular basis”; e.g. the meetings with the convicts to discuss their personal problems should be conducted on the regular basis, and, moreover, with the institution administration participation! It is easy to predict the efficiency of such measure from the point of view of the uncovered violations of the prisoners’ rights! “The check-ups of the legality of penalties imposed on the inmates, i.e. placing them into the cells, isolation wards and incarceration” (!). it means that the OC has undertaken the prosecutor’s functions as these check-ups are within the terms of reference of the prosecutor’s office, while the OC under Article 25.2 of the Criminal Procedural Code of Ukraine, are to exercise control over the adherence to the prisoners’ rights. Abiding with the law and adherence to the prisoners’ rights are two different concepts, and the breach of legality does not necessarily mean the violation of the prisoners’ rights. Besides, the OC obligation to “check up the legality” of incarceration makes one assume that the OC plans have not been revised for at least 8 years, because it was exactly 8 years ago that the Correctional Labor Code of Ukraine, establishing the incarceration as confinement measure. No dates for the commission meetings, including field meetings in the penitentiary institutions are provided.

2. Observing Commission of Zhovtnevy district provided the work plan for the year 2012. The plan is sufficiently detailed. It is noteworthy that it includes an item “reports of criminal justice inspection at OC meetings concerning their work with individuals released on parole”. It is common knowledge that criminal justice inspections have not been doing anything in this area. Under the Ministry of Justice requirements and instruction of the SCPSU № 16/1-1855/Lc of 18.03.2011 on abolishing the instruction of the State Department of Ukraine for Penitentiary System (hereinafter – the Department) on temporary registration of the individuals released on parole and control over their behavior (№ 19/713/Kn of 13.02.2009), the registration of the individuals released on parole stopped. That’s why the level of OC members’ awareness of the legislation in force, and in particular, the parts that regulate their own operation, is of a special interest! The OC provided a schedule for meetings with the inmates of Kholodnohirsk CF №18 (as addendum) for the 1st and 2nd halves of the year 2012. These meetings were to be held between 12:00 and 2:00 pm once in a month. The same members of the commission had to see the inmates of Kharkiv pretrial detention center between 2:00 and 4:00 pm on the same day. No timeframe was provided for the intended visits to Kholodnohirsk CF №17, although the plan specified that they had to take place in May and in November. No plan for dealing with the individuals released on parole was provided.

3. Observing Commission of Ordzhonikidzevsky district (Kharkiv) (Kharkiv CF №43). Commission has 10members. Oddly enough, the OC, according to the information, has no chairman. 6 persons represent the community; 3 of them, though, are the heads of the street committees which makes one suspicious as to the fairness of their appointment to the commission. The joint meetings of the OC with the CF-43 commission on the issues of parole release were planned. Looks like this OC invented a new organizational form not stipulated by the Regulations (probably, the attendance of the so-called meetings on parole release by the OC members was meant). Moreover, we received the “Schedule for the joint meetings of the CF-43 commission and OC for the 2nd quarter of 2012”, agreed upon by the facility warden and the OC deputy head! So, the OC of the Ordzhonikidzevsky district together with CF-43 administration established an interesting practice of joint meetings on the agenda of parole release. These meetings were to be held 4 times a month, in August – even 5 times. Apparently, the plan refers to the meetings of the parole release commission, but the submitted schedule testifies to a different understanding of joint events planned by the OC and CF-43 administration.

4. Observing commission of Kominternivsky district. Membership — 10 persons, with only 4 of them representing public organizations. The provided plan was the most voluminous of all. IN fact it is the only commission which clearly planned monthly meetings (in compliance with the legislation) and described the agenda to be addressed each month.  However, the dates and time for the meetings were lacking. The schedule for the meetings with the inmates of Kachanivka CF   №54, check-ups of the inmates’ conditions in the facility for 2012 were compiled but never submitted. No information was provided on the dates or time for the visits to CF – 54; neither was it found in the action plan. No plan for work with individuals released on parole was provided.

5. Observing Commission of Kominternivsky district. Membership — 13 persons, with only 3 of them representing public organizations, in violation of the legislation in force. The work plan for 2012 was provided. It is noteworthy that it contained no timeframes for the events mentioned there. Instead the measures are referred to as “conducted on the regular basis”, “constant”, “carried out in the course of the year” ( which is, in fact, all the same), “over the year 2012” ( all the same, again!) and “as need arises”. Even the meetings with the inmates of penitentiary institutions are conducted “regularly”, and no one specifically is in charge – the whole OC is responsible for them.

This vagueness can hardly contribute to the systematic meetings with the prisoners. The majority of plans were compiled in haste and rather negligently. Only some of them can boast of detailed and viable provisions. Lack of timeframes for specific events, lack of the persons directly responsible for the implementation are among the most typical flaws of the plans. Some commissions planned less than one meeting per month as stipulated by the Regulations on OC. Not all the OC devised the schedule for meetings with the convicts. Personal responsibility for the OC action plan is recommended, as it would enhance not only accuracy and clarity of the commission’s operation, but also its efficiency. If each commission member develops his/her action plan with specific terms of responsibility, then all the plans can be compiled and approved alongside with the general OC plan, defining the areas of operation which can be addressed by the OC as a whole. If the OC members wish so, the general OC plan can envisage also measures which can be implemented by several members of the commission.

Under p. 16 of the Regulations, the OC meetings are to be held right in the penitentiary institutions at least on a quarterly (semi-annual) basis. The OC either failed to provide any information with this respect, or did not give any specific dates of the planned meetings etc. Interviews conducted with the commission members led us to believe that the majority of them were not even aware of the obligatory nature of the meetings which ought to be held in the penitentiary institutions. That is why specific dates are to be reflected in the commission action plans. Characteristically, only one commission (in Zhovtnevy district) offered specific dates and time for the planned meetings. I believe that dissemination of this practice could be instrumental in making OC operation more focused.

The issue of unequal representation of public and state authorities within the commissions is a problem common for all the OC. The majority of the OC has 1-2 more “official” members than the members of general public. Some of the OC, however, have even less representatives of the community, e.g. Pervomaysky district OC, which has only 3 members of public among the total number of members, which is larger than stipulated by the Regulations. This situation can be explained by lack of interest towards OC operation among the NGOs of some districts. Actually, even the organizations represented in the OC, are not the ones that deal with the penitentiary system or work for the reforming of criminal justice. Mainly they unite former public servants, WWII veterans, Afghan veterans, street committees members, people affected by the aftermath of the Chernobyl NPP disaster, clergy. Their membership in the OC shows that specialized organizations are scarce. Not a single OC in Kharkiv oblast’ (with the exception of Balakliya rayon), is headed by a member of public, or has a public representative as deputy head or secretary. The reason for this is that under the Regulations both the head and the secretary are elected by the OC founding body. Easy to guess that a state official a priori is not interested in OC active operation (as any members’ excessive activity means more of a “headache” for him) becomes the head of the commission. As a result, the whole OC operation can become dependent on the state officials’ will and won’t be able to realize its human rights protection initiatives, involving the community members into the process. These latter thus become just “petitioners” seeking the OC head’s permission every time certain initiative comes into being. Naturally the OC head is an elected official with a lot of other duties apart from the observance of the prisoners’ rights or even meetings with other commission members.

The majority of the penitentiary institutions in the oblast’ lack available information on the OC members or even on the OC address. As a result, the convicts do not know much about the OC. The prevalent number of the convicts responded they have never heard about the OC. E.g. some inmates of Temniv CF №100 mentioned that they themselves prepared and displayed the information board with the OC data a year ago, just before the commission visit. This visit, by the way, was just a single occasion, according to the inmates. The verification of the OC meetings with the agenda of observance of the prisoners’ rights (in 9 OC) was also conducted on the eve of the parliamentary elections or on the very Election Day.

Among other things we were surprised to find out that the OC are very hard to reach by phone. Sometimes we had to dial 5 different numbers before getting any response at all. Then we were either redirected to another number or asked to call later etc. It is a very vivid example of how difficult it would be to reach an OC from any penitentiary institution, where phone calls are limited. Only one OC (!) was willing to exercise control over adherence to the election rights of the convicts by direct observation of the voting process in Kholodnohirsk CF №18. All the rest never gave it a second thought.

E.g. the head of Chenozavodksy district OC O.Bakshiyev bluntly told us that he had other things to do before the elections. The other commission heads either did not understand what we were talking about or claimed that such control was unnecessary or redundant for many reasons (e.g. there are other control bodies present, there are no problems, nothing can happen there etc.). By the way, the phone calls we made were aimed not only at finding out whether any control over observance of the prisoners’ election rights was planned, but also at checking the accessibility of the Kharkiv oblast’ Observing Commissions for the potential convicts in isolation custody.

The Kharkiv oblast’ OC deserves a special mention. One of the authors of this report became a member of this commission and could see with his own eyes the inefficiency of its operation which led him to consider the possible reasons and hindrances accounting for its faulty activity. The new membership (12 persons) of the OC was approved on April 13, 2012. After the organizational meeting not a single event was organized in 6 months. Finally, one of the authors of this report wrote a letter to the OC head; as a result the OC managed to convene, as it turned out, with the new head. Besides, at the very beginning the request for the passes allowing all the commission members entrance to the penitentiary institutions was made.^[59] The Regulations on OC, p. 8, stipulate that “commission members for the term of their office, are issued the passes for the visits to the penitentiary institutions, located in the territory of the respective administrative units”. Finally the new OC head expressed his readiness to have the passes issued and distributed among all the commission members.

Later, however, the OC head O.Anpilogov changed his mind and declared at the OC meeting that after discussing the matter with the head of the SPSU head for Kharkiv oblast’ they arrived at the conclusion that issuance of such passes is not expedient, and assured the commission members that no problems will arise for their visits to the penitentiary institutions. In fact the official opted for starting his control over observance of prisoners’ rights with violation of p. 8 of the OC Regulations. Moreover, when reprimanded by V.Chovhan, who stated that this decision was illegal and the matter would have to be brought to court, O. Anpilogov reacted in a way, most inappropriate for a high official – he screamed, made humiliating utterances and threatened to strike the critic’s name from the list of the OC members. The criticism voiced by the aforementioned OC member with respect to O.Anpilogov’s requirement to inform him of any planned visits to the penitentiary institutions, so that he could, in his turn inform the SPSU head for Kharkiv oblast’, met with similar violent reaction. Obviously the proposed algorithm would make any unplanned visits impossible, so that the facility administration would have plenty of time to get ready for the visit aiming at monitoring the observance of the prisoners’ rights. This critique, however, was not even discussed. On the contrary, the proposed algorithm was supported by many OC members.

The statistical data reflection the oblast’OC operation over the year are unsatisfactory as well. E.g. not a single convict has approached 20 out of 42 oblast’ OC! 32 out of 42 OC failed to assist the convicts in seeking employment. And the 10 OC which did help, provided assistance to 27 individuals only! The number of violations committed by the commission over the first 6 months of 2012 is another cause for concern.^[60]

Report of the European Committee for prevention of torture and cruel or degrading treatment or punishment

On November 14, 2012 the report of the European Committee for prevention of torture and inhuman or degrading treatment or punishment, based on the results of the visit to Ukraine between November 29 and December 6, 2011, was published.

Report mainly addressed the conditions in which the inmates of the institutions under Ministry of Interior of Ukraine are kept. Some portion of it, however, dwelt upon provisions governing the operation of the SPSU institutions.

Thus the Committee representatives visited the pretrial detention centers in Kyiv and Kharkiv. In the report that followed the Committee appreciated the efforts of the Ukrainian authorities to reduce the number of people kept in the pretrial detention centers, but pointed out certain serious problems. Despite the fact that Kharkiv pretrial detention center recently reduced the number of its inmates by 1000 persons that were transferred to other facilities, the situation still remains complicated. The Committee delegation uncovered a horrifying fact – 44 adult inmates were held in the cell 45 sq m big. It means that one person had about 1 sq m of space for himself. Moreover, the cell had only 28 beds, so that the inmates had to take turns to sleep.

The information that boxes with total size of only 0.8 sq m were used for the inmates of this temporary detention facility is also overwhelming. The penitentiary institutions’ administration explained that they were used for temporary stay of the inmates and for their interrogations by the security staff. The Committee pointed out that such premises cannot be used even for short periods of time. (p. 44 of the Report).

The delegation also stated that iron grates on the windows are also inadmissible and the administration had to assure the Committee members that the grates would be removed in the nearest future. Later, commenting on the Report, Ukrainian authorities advised that they had been removed. It is noteworthy that during every visit the Committee brings the inadmissibility of the grates to the attention of the administration and every time this latter promises that they would be removed. Nevertheless, the reluctance of Ukrainian officials to comply with the Committee recommendation is evident, as even today, under p. 17of the Internal Regulations for the penitentiary institutions (Order №275) the windows in the cells and disciplinary isolation wards of the penitentiary institutions have metal welded bars. By the way, despite of numerous NGOs’ protests against this normative act, the Order №275 has not been changed since 2007.

As to the Committee’s comments on the regulations and actual conditions in which the detainees are kept in custody, the Ukrainian authorities responded that the Ministry of Justice of Ukraine is developing the draft order “On approving the Internal Regulations for penitentiary institutions of preliminary incarceration” (p. 46).^[61] In fact, it is known that after shocking information about the conditions in which the detainees are kept in custody became public, this draft was being devised, even with public involvement in the process. Nevertheless, till now this document has not seen the light of day.

See also

• Lukyanivska Prison
• Ukraine prison ministry
• Incarceration in Ukraine

References

1. Problems of reforming the penitentiary system of Ukraine and the draft of the Penal Code, Kharkiv Human Rights Protection Group (21 May 2000)
2. "Ukraine: Victims of police brutality". Amnesty International USA. 27 September 2005.
3. "Radio Liberty: Amnesty International notes worsening of human rights situation in Ukraine". Kyiv Post. 13 May 2011.
4. "Ukrainian Police Arrested For Alleged Torture". Radio Free Europe/Radio Liberty. 1 April 2010.
5. Ukraine prisoners stranded in legal limbo on the frontline of a war, The Guardian (1 June 2015)
6. "Number of inmates in Ukraine rises for first time in 7 years". Kyiv Post. 26 March 2009.
7. HIV/AIDS and hepatitis C in prisons: the facts, AIDSLEX (2006)
8. Living Hell, Kyiv Post (23 December 2011)
9. Tymoshenko will face severe conditions in prison, Kyiv Post (September 14, 2011)
10. "The US Department of State 2009 Human Rights Report: situation in Ukraine". Kyiv Post. 16 March 2009.
11. http://www.kmu.gov.ua/control/uk/publish/article%3fart_id=223286414&cat_id=223280190
12. http://www.kmu.gov.ua/document/246660125/Information_on_EU-Ukraine_AAg_Implementation_2013_(Ukr).doc
13. http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/699785
14. The last year report already addressed the imitation of law-making process by the Ministry of Justice: http://helsinki.org.ua/index.php?id=1362663498
15. The last year report contained the reprimands and recommendations to the Ministry of Justice as to its deficient and unsatisfactory norm-making activity, contrary to the human rights standards
16. http://zakon2.rada.gov.ua/laws/show/z0445-13/print1380096754591927
17. http://kvp.in.ua/?p=11&cpage=1
18. http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/678075
19. http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/660592
20. http://ukrprison.org.ua/articles/1375073466
21. http://zakon4.rada.gov.ua/laws/show/345-2013-%D0%BF/print1378734200935557
22. http://zakon4.rada.gov.ua/laws/file/text/16/f399511n75.doc
23. http://ukrprison.org.ua/news/1379448904
24. The last year report contained a note on unacceptability of CF transfer to self-sufficiency regime at the cost of the inmates’ work. Also, recently the experts of the “Renaissance” IF arrived at the similar conclusions in their report on implementing the requirements compulsory for the Agreement on association with EU: http://www.irf.ua/files/ukr/programs/euro/report_ua_eu_18.6.2013.pdf
25. http://zakon2.rada.gov.ua/laws/show/994_032/print1380103375378991
26. The passing of the draft law was introduced as pro-European changes in mass media, despite its real nature, e.g.: http://www.unian.ua/news/593591-rada-priynyala-evrozakon-pro-pomyakshennya-umov-dlya-zasudjenih.html
27. http://ua.racurs.ua/363-progresyvnyy-zakon-pogirshyv-stanovysche-ukrayinskyh-v-yazniv
28. http://www.pravda.com.ua/articles/2013/10/8/6999504/
29. Hamai K. Probation Across the World: Comparative Study. — London: Routledge, 1995. — P. 3.
30. http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511=45499&pf35401=252138
31. http://zakon4.rada.gov.ua/laws/show/z1133-13/print1378734200935557
32. Relevant recommendation was formulated in the last year report, but, despite its transparent nature, it was not taken into account in the Provisions. It can mean that: а) the SPSU did not familiarize itself with report or б) the SPSU failed to take public recommendation into account in the law-making process.
33. http://www.khpg.org/index.php?id=1361282500
34. A.Stepanyuk. The essence of penalty enforcement // – Kh.: Folio, 1999. – 256 с.
35. http://archive.nbuv.gov.ua/e-journals/Chaau/2013-1/13yisvkp.pdf
36. http://zakon4.rada.gov.ua/laws/show/z1863-13/print1378734200935557
37. http://archive.nbuv.gov.ua/e-journals/prtup/2012_1/yakovec.pdf
38. http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/692366;jsessionid=ACA7F167D0EE817CE70799E74474FF7B
39. http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=48169
40. http://khpg.org/index.php?id=1370666586
41. http://khpg.org/index.php?id=1379842217
42. The fact is that the SPSU translation available on CPT site at first was not to be published and bore the seal of the “internal use only”
43. See Report analysis in more detail at: http://www.khpg.org/index.php?id=1379843571
44. http://www.cpt.coe.int/documents/ukr/2013-24-inf-ukr.pdf
45. http://helsinki.org.ua/index.php?id=1303464835&w=%CD%E5%F7%E8%EF%EE%F0%F3%EA
46. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122664
47. http://ukrprison.org.ua/international_documents/1326235909
48. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109197
49. Means of correction and re-socialization of the prisoners: monograph / Ed. By Doctor of Law Prof.А.Stepanyuk. — Kharkiv: 2011. — С. 91-94.
50. http://khpg.org.ua/index.php?do=print&id=1326711173
51. http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/655223
52. http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/656246
53. http://zakon2.rada.gov.ua/laws/show/z0261-12
54. http://zakon2.rada.gov.ua/laws/show/v009p710-12
55. http://ukrprison.org.ua/expert/1334027883
56. http://www.unodc.org
57. http://helsinki.org.ua/index.php?id=1362813152
58. http://ukrprison.org.ua/articles/1351802832
59. http://khpg.org/index.php?id=1351118909
60. Summarized information on interaction between the SPSU and observing commissions in the first half of 2012. Department of criminal justice inspection and social/psychological work with the prisoners kept in the SPSU institutions
61. http://www.cpt.coe.int/documents/ukr/2012-31-inf-eng.htm

External links

• Web-site of Dmytro Yagunov
• State Penitentiary Service of Ukraine
• Donetskiy Memorial site
• Kharkiv Human Rights Group site