Publication

Prisoner’s rights

 

  1. General overview [1]

As of November 1, 2015 [2] under control of the State Penitentiary Service of Ukraine (SPSU) were 177 facilities (among them 29 facilities on the temporarily occupied territory of Donetsk and Lugansk regions). In custodial and detention facilities located on the territory controlled by Ukraine there were kept 70 873 persons [3] (as of December 1, 2014 – 79750) among them 2 447 women and 353 minors.

During the year it also was registered decrease of number of prisoners or even minor tendencies to increase of this number (for the first time for the last few years) [4].

In any case the number of prisoners per 100 thousand of inhabitants is at least two times higher than the average indices of the EU countries. Thus as for beginning of October this index was 195 persons per 100 thousand of inhabitants [5].

In 2015 were published the precursory remarks and the report of the Committee for the Prevention of Torture (CPT) about its visit to Ukraine within September 9 till 16, 2014. It goes about alarming findings of the CPT in relation to tortures and misbehavior in Kharkiv correctional camps No. 25 and 100 in these documents. Earlier we wrote about the inadequate reaction of the national authorities on the previous remarks of the Committee referring this issue [6].

As shown in the further responses of the government and especially the recently published response [7] the national authorities following “the good old tradition” did not find any issues in the sphere of functioning of correctional camps No. 25 and 100. The said additional response is brought to notifying the Committee that there were taken a number of measures but there were found no violations and all actions of administration met the requirement of the current legislation as well as about the absence of any proceedings concerning responsibility of the staff of these facilities. Very significant in this case is mentioning in this document the fact of the retirement of the former head of the correctional camp No. 25 Khyrhyy V.G. as well as the fact that the head of the correctional camp No. 100 was appointed on position of the head of another Kharkiv facility No. 43 although these two persons are believed to have been personally involved in tortures and should have been incurred responsibility for that [8]. At the same time torture and misbehavior in these facilities are keeping on according to the results of monitoring visits of the Kharkiv Human Rights Protection Group and the National Preventive Mechanism (NPM).

The improper execution of decisions of the ECHR in the sphere of penitentiary system is still going on in Ukraine [9].

Experts of the Council of Europe have prepared thorough report on how Ukraine can secure the appropriate preventive and compensatory measures [10]. Also on October 12, 2015 on the basis of Order of Minister of Justice of Ukraine No. 283/7 in Ukraine was established the interdepartmental working group for solving this issue. In the frameworks of the work of this group the EU Advisory Mission prepared the draft law that takes into account the best practices of some EU countries and the practice of the ECHR.

The level of illegal torture from the side of personnel of penitentiary system to prisoners decreased slightly in comparison with the previous year. Primarily this is connected with increase of public control in facilities of the SPSU in the frameworks of NPM under the patronage of the Ombudsman as well as after the approval of the Parliament of Ukraine amendments to the article 24 of the Criminal and Correctional Code of Ukraine which gave a possibility to the public representatives in connection with journalists and doctors to visit the penitentiary facilities without announcing that fact.

In 2015 the practice of using Special Forces of the SPSU for searches, mass beatings and humiliation of prisoners was almost stopped. However this practice still exists from the side of so-called “composite teams” of workers of other penal institutions.

 

  1. Legislation

One of the important events was launching activity of the parliamentary Subcommittee concerning actions of the SPSU. Due to this activity the public and the experts managed to register a number of legislative initiatives aimed at improving situation with the human rights in the penitentiary sphere.

At this time in the frameworks of the Project were developed and registered six draft laws [11]which eventually were adopted by Parliament at first reading. Earlier we have given the analysis of these draft laws [12]so here are some bullet points:

The draft law 2291а changes the philosophy of preliminary detention so it makes contact with the outside world (visits, phone calls, correspondence) to be the rule but not the exception. The guarantees against undue restriction of rights are strengthened. The standards of material conditions of detention are improved; the guarantees of a number of other rights are secured.

The draft law 2253а is aimed at elimination of the systemic issue – detention of prisoners in facilities that are too far from their place of residence (decision of the European Court “Vintman vs. Ukraine”);

The draft law 2255а aims to define the jurisdiction of complaints (applications) of prisoners that should exclude so-called “football” when local general courts declare that this case is a matter of administrative courts and vice versa. In addition the draft law exempts such complaints from payment of court fees;

The draft law 2251а amends the Criminal and Correctional Code of Ukraine with the purpose of ensuring the following: expanding the list of commendations, transparency in the use of commendations to prisoners and regulating of this procedure; clear ground for imposition of penalties; clear regulatory definition of procedure of checking cases of routine violations by prisoners, additional procedural guarantees for protection of the rights of prisoners;

The draft law 2252а improves the rights of prisoners for social security and expands the right for medical and sanitary support, establishes a clear basis for transfer to department of intensive control;

The draft law 2254а cancels the life imprisonment for women.

It is also worth to mention the draft law No. 2685 adopted after the first reading the vast majority of provisions of which were developed by the author in cooperation with the  the Kharkiv Human Rights Protection Group [13]. Its main focus is to guarantee the protection of the rights of prisoners from ungrounded, excessive and so-called blanket (automatic) limitations of the rights, to secure the procedural guarantees of the rights of prisoners such as the right for defense during the disciplinary proceedings, etc.

The draft law No. 2708 recommended for further adoption which cancels criminal responsibility for malicious failure to obey the requirements of the prison officials should be assessed positively too. Article 391 of Criminal Code of Ukraine [14].

One of the long-awaited events was adoption by the Parliament of the Law of Ukraine “On amendments to some legislative acts of Ukraine concerning the replacement of life imprisonment with a milder punishment” (No. 2292) which creates the possibility for conditional release. It is worth to note that the name does not reflect the essence of the draft law because it introduces the possibility of conditional release for life prisoners and the replacement with softer punishment is not provided. In addition the draft law does not provide clear and reliable mechanism of early release for life prisoners and during the second reading there were made the following deteriorationf of the draft law [15]:

– there was fully canceled the provision about the possibility of replacement of punishment with a milder one that contradicts with the principle of continuity in release of life prisoners;

– for early release there was set the necessity of completion of sentence in amount not less than 20 years as distinct from 15 years in the first edition;

– there was introduced the possibility of returning to serving the penalty for minor violations (violation of administrative supervision set for 10 years)[16].

The adoption in the first reading by the Parliament of the draft law No. 2033а concerning ensuring the right for legal sentence for certain categories of convicted persons should assessed positively. The draft law provides a possibility of review of sentences in cases concerning grave and especially grave crimes adjudged on the basis of the Criminal Procedure Code of Ukraine for 1960 when they were based on the acknowledgment of guilt, the evidence obtained with violations of the human rights and procedural provisions or other violations [17]. This draft law gives hope to many prisoners who have lost the mechanism of review of their sentences even in cases of grounded doubts about their guilt [18].

Traditionally in 2015 the SPSU continued to prepare draft laws in which there were visible the negative tendencies in the sphere of the human rights.

The new provision on personal pardon of prisoners call for a number of comments [19].

On October 7, 2015 the Cabinet of Ministers adopted the Order No. 1066-p “Some issues of reforming of the system of functioning of custodial and detention facilities”. In accordance to this document there decided to establish the process of liquidation of Chernivtsi custodial detention facility No. 33. Within the period of two months the Ministry of Justice had to contribute suggestions concerning practicability of transferring custodial and detention facilities beyond the borders of the cities of Kyiv, Lviv, Odessa and Khmelnytskyy.

 

  1. AR of Crimea, Luhansk and Donetsk regions

About 3900 prisoners were held in four institutions of the State Penitentiary Service of Ukraine at the territory of AR of Crimea at the moment of Russian occupation, who were forced to take out the Russian citizenship. In fact, the Russian federation took over the responsibility for life and health of these people.

As for temporarily occupied territories of Donets and Luhansk regions, Ukraine didn’t take care of its citizens and failed to provide evacuation of people, who couldn’t leave institutions of the State Penitentiary Service of Ukraine by themselves. The staff of these institutions did have a choice: to stay or move to the territory free from military operations, whereas prisoners didn’t have such choice. In reality, the state left at least 15 thousand of its people without any help in Luhansk and Donetsk regions. Moreover, according to prisoners and people, who kept working in Donetsk region, they maintained communication with the central administration of the State Penitentiary Service of Ukraine and received a salary for some time.

We received complaints from Luhansk region with several terror groups about tortures and abuse from terrorists, enforcement to take weapons and fight in favour of separatists. There are some cases when prisoners were released, including those under life sentence if they support militants with weapon in hand.

There were also cases when prisons were attacked by fire. On February 06, 2015 at 13:18 a community liaison office of Kharkiv rights group received a message from Yenakiieve penal colony No.52 of Donetsk region, where prisoner T. said: “It is mortar attack now, flakes fly to pieces to us, people from the second floor knock down a door to get transferred to the first floor to hide. Controllers pretend to be missing, and an investigator Khaustov Ruslan Olehovich is hiding with controllers in the basement. Moreover, he came to us and told us not to worry, but hide under plank beds. Recently some missiles have got inside from grad. They struck the dining room, which is completely destructed now. One person is dead, another one is in intensive care”.

Prisoner M. from Chornukhyne penal colony No.23 sent a message saying: “Several jeeps arrived to prison and took out dead bodies of prisoners that had been released yesterday. An artillery arm is in the center of the urban-type settlement and street fighting is on both sides. There were 380 people in total. When bomb attack started, the staff opened the gate and ran away. Those people, who came out (about 300) got under fire from the checkpoint „LPR“. Then people in OMON cars brought dead bodies and videotaped everything. Cluster bombs are everywhere, dead bodies are lying on the street. So, we are almost losing our minds. I turn yellow and my liver hurt. I probably have biliousness and there no appropriate medicines”.

Chornukhyne settlement is 65 km from Luhansk – at the border of self-proclaimed “LPR” and “DPR”. The citizens are evacuated due to military operations. According to preliminary data 83 prisoners has already returned to Chornukhyne penal colony No.23, who had previously left the territory of the institution trying to save their lives during gunfire from 8th to 10th February 2015. It was also said that a part of prisoners, who had been serving a sentence in this colony and escaped at the time of its gunfire, got to checkpoints of the Ukrainian National Guard by themselves with further documentation of the appropriate information. 23 of them were transported to Artemivsk penitentiary facility No.6 (Donetsk region) by law-enforcement officers and they are still there.

It should be mentioned that attempts to evacuate prisoners by negotiations with terrorists of Donetsk and Luhansk regions were unsuccessful even with the participation of Ombudsman’s office.[20] In terms of globality of the problem of saving prisoners there is obviously not enough attention on the highest political level, in particular, during Minsk process. Though, it is known that this issue was repeatedly brought up as part of Community Council operation under the State Penitentiary Service of Ukraine, and by a people’s deputy I. Herashchenko, who takes part in Minsk negotiations.

 

Recommendations

  1. To Verkhovna Rada of Ukraine:

– adopt and support draft laws in the penitentiary sphere, which were developed and are in the process of development within the Sub-Committee of Verkhovna Rada concerning the State Penitentiary Service of Ukraine;

–  do not allow adopting draft laws No.2490a and No.2979 without their amendment for the purposes of avoiding human rights violation.

  1. To the President of Ukraine:

– take measures in order to evacuate or take prisoners from the territories beyond the control.

  1. To the Ministry of Justice of Ukraine:

– prioritize human rights in the process of the penitentiary reform;

– complete the process of the State Penitentiary Service of Ukraine subordination to the Ministry of Justice, according to the requirements of the Resolution of the Parliamentary Assembly of the Council of Europe No.1466 (2005);

– create a separate working party for dealing with reforms in the sphere of prisoners’ rights with the prevailing number of public members in it;

– take measures for appropriate execution of standards of the European Committee for the Prevention of Torture and decisions of the European Court of Human Rights in the penitentiary sphere with consideration of comments from public;

– consider comments of public concerning bylaws relating to the penitentiary sphere (internal regulation in the detention facility, penitentiary facilities etc.);

– demilitarize State Penitentiary Service of Ukraine.

  1. To the State Penitentiary Service of Ukraine:

– comply with the recommendations of last year’s reports, which were not complied;

– take measures for avoiding disproportional individual and collective use of force by the staff of State Penitentiary Service of Ukraine;

– take measures to evacuate prisoners from the territories beyond the control;

– do not allow prisoners working without conclusion of an employment agreement;

– stop involving prisoners to work in inappropriate conditions and for a small salary;

– initiate and facilitate changes to bylaws in the penitentiary sphere, which were criticized by the community during the last years;

– comply with the unexecuted recommendations of the European Committee for the Prevention of Torture and decision of the European Court in the penitentiary sphere.

  1. To the Department of free pardon of the Presidential Administration:

– change Provisions about free pardon with the consideration of recommendations of public.

[1]Section is prepared by V. Chovgan and A. Didenko (Kharkiv Human Rights Protection Group)

[2]According to official statistic data of State penitentiary service of Ukraine.

[3] Where 17000 people (of which 9350 people are at the stage of pretrial investigation or court hearing) were kept in 12 detention facilities and 17 penitentiary facilities with function of detention facilities. 53521 prisoners were kept in 113 penal institutions: 2733 people – in 7 colonies of maximum security level, 21663 people – in 32 colonies of medium security level for prisoners convicted for several times, 15408 people – in 27 colonies of medium security level for prisoners convicted for the first time, 2047 people – in 7 colonies of minimum security level with general conditions for men, 647 people – in 4 colonies of minimum security level with facilitated conditions for men; 2466 people – in 21 correction centres, 1156 people – in 4 specialized medical treatment facilities, 1716 people – in medical treatment facilities under correctional facilities and detention facilities.

[4]http://ukrprison.org.ua/news/1436705265

[5]According to Goskomstat (according to the Institute of Criminal Policy Studies (Great Britain) with a view to 36.5 mln. people of Ukraine: http://www.prisonstudies.org/country/ukraine

[6]http://www.khpg.org/index.php?id=1421181824

[7]http://www.cpt.coe.int/documents/ukr/2015-24-inf-add1-eng.pdf

[8]http://khpg.org/index.php?id=1382718737

http://ua.racurs.ua/391-ievropeyskyy-sud-uv-yaznenyh-ne-mojna-prymushuvaty-donosyty-odyn-na-odnogo

[9]Analysis of fulfillment of decisions for 2011-2012: http://khpg.org/index.php?id=1370666586

and for 2013-2014: http://www.khpg.org/index.php?id=1435471096

[10]http://sc.gov.ua/ua/golovna_storinka/suddi_vssu_vzjali_uchast_u_obgovorenni_ekspertnih_visnovkiv_predstavnikiv_radi_jevropi_cshodo_preven.html

[11]Their direct developers were V. Chovgan and I. Yakovets. In the process of development and discussion there is a range of other drafts: http://www.miroshnychenko.ua/%D0%BF%D1%80%D0%B5%D1%81-%D1%86%D0%B5%D0%BD%D1%82%D1%80/%D0%BE%D1%84%D1%96%D1%86%D1%96%D0%B9%D0%BD%D0%B0-%D0%BF%D0%BE%D0%B7%D0%B8%D1%86%D1%96%D1%8F/2015.10.24-/-%D0%B4%D0%BE%D1%82%D1%80%D0%B8%D0%BC%D0%B0%D0%BD%D0%BD%D1%8F-%D0%BF%D1%80%D0%B0%D0%B2-%D0%BB%D1%8E%D0%B4%D0%B8%D0%BD%D0%B8-%D0%B2-%D0%BF%D0%B5%D0%BD%D1%96%D1%82%D0%B5%D0%BD%D1%86%D1%96%D0%B0%D1%80%D0%BD%D1%96%D0%B9-%D1%81%D0%B8%D1%81%D1%82%D0%B5%D0%BC%D1%96.html

[12]V. Chovgan Prisoners’ rights, in the publication “Human rights in Ukraine: the first half of 2015”. Scientific publication. As revised by: A. B. Blaga, О. А. Martynenko/ Ukrainian Helsinki Human Rights Union. — Kyiv, 2015. – P. 168-182 (http://helsinki.org.ua/files/docs/1441698504.pdf)

[13] V.O. Chovgan. Reforming of penal legislation in the light of international standards (suggestions and comments) / Kharkiv: “Human Rights Publishing Office” LLC, 2014. – P. 3-27 (http://library.khpg.org/files/docs/1423636043.pdf)

[14]http://www.khpg.org/index.php?id=1239799834

[15]For more details ref.: V.O. Chovgan Thesis of an address at the expert roundtable discussion “Vichnedovichne” on the topic of “Mechanism of release on parole from life imprisonment” // http://kvs.gov.ua/zmi/2015TezyChovgan2107.pdf

[16]For more details ref.: V. Chovgan Prisoners’ rights, in the publication “Human rights in Ukraine: the first half of 2015”. Scientific publication. As revised by: A. B. Blaga, О. А. Martynenko/ Ukrainian Helsinki Human Rights Union. — Kyiv, 2015. – P. 176 (http://helsinki.org.ua/files/docs/1441698504.pdf)

[17]http://www.radako.com.ua/news/obvinuvalni-viroki-za-kpk-1960-roku-pereglyanut

[18] A. Didenko, V. Chovgan Life imprisonment: European standards and Ukrainian practice. Publication 2 revised / edited by E. Zakharova — Kharkov: Human rights, 2014. — 316 p. (available at: http://library.khpg.org/http://helsinki.org.ua/files/docs/1409320826.pdf )

[19]For more details ref.: V. Chovgan Analysis of the new Provision about procedure of remission and responsiveness of public proposals in it // http://www.khpg.org/ru/pda/index.php?id=1430478161 , and also: M. Romanov How is it to be remitted in a new way // http://www.khpg.org/index.php?id=1430373089

[20]http://www.ombudsman.gov.ua/ua/all-news/pr/5815-yg-za-initsiativi-valeriii-lutkovskoii-zdijsneno-drugu-peredachu-zasudzhe/

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