Where Is Ukraine’s Prison System Heading?

I. Introductory Notes

Dear reader,

This article could have been written a year or two ago. Its title could have been “Failed Management of the Penal System,” “The Decline of the State Penitentiary Service,” or “Is There a Limit to Human Rights Neglect in the Penitentiary System?” Until now, its publication was hindered by a sense of ethical restraint, as it concerns the state system and officials I know well. There were hopes for the better, but they proved futile.

The last straw was:

1) becoming familiar with the inspection report of the State Department of Ukraine for the Execution of Criminal Punishments (hereinafter referred to as the Department), conducted by an interdepartmental commission on the instructions of the Cabinet of Ministers of Ukraine dated September 11, 2007, No. 38745/4/1-07, the critical findings of which practically did not lead to any serious government decisions on this issue;

2) becoming familiar with the report on the work of the State Department of Ukraine for the Execution of Criminal Punishments for the fourth quarter of 2007, under the deceptive title “Results Show: There Are Successes” (see the Department’s publication – the newspaper *Zakon i Obovyazok* No. 5 of February 1, 2008), which is full of dithyrambs about the unconditional guarantee of the rights and freedoms of citizens deprived of liberty, the further humanization of conditions for serving sentences, and the strengthening of legality and law and order in places of detention (as if there had not been, recently, socially resonant cases of brutal violations of the rights of convicts, the deployment of special units into correctional institutions, and the use of force);

3) the unwillingness of the President of Ukraine and the Government to show political will and restore at least elementary order in the management of the State Penitentiary Service, and the complete disregard by these authorities of the demands of human rights organizations, repeatedly addressed to both the guarantor of citizens’ rights and freedoms and the Government of Ukraine (the latest such open appeal to Yulia Tymoshenko’s Government in December 2007 from the Ukrainian Helsinki Human Rights Union, which includes nearly 40 of Ukraine’s most influential public human rights organizations, titled “Ten Steps Aimed at Improving the Human Rights Situation in Ukraine,” called on the new Government of Ukraine to take immediate measures to transform the State Department for the Execution of Criminal Punishments into a civilian agency and resubordinate it to the Ministry of Justice of Ukraine).

The article aims to inform society about the disorder in the penitentiary system, to urge it and non-governmental organizations to demand decisive actions from the President and the Government to restore order in this agency, to establish legality in its activities, transparency in decision-making, accountability not only to certain authorities but also to society, and openness to public control.

In this case, I am acting as an expert scientist who has known the processes occurring within the penitentiary system well since 1981, who was long involved in training professional personnel for the system’s operation and instructing practitioners, and who later facilitated the involvement of non-governmental organizations in assisting the penitentiary system, conducting social work with convicts, and reintegrating them into society.

Over the last 7 years, we have attracted over 1.5 million dollars in charitable funds for measures aimed at penitentiary reform and the participation of non-governmental organizations in its implementation. These funds were used, in particular, to create the Bila Tserkva Vocational Training School, which was intended to simultaneously serve as a training center for the operational resolution of current tasks in improving the qualifications of State Penitentiary Service personnel, which is not being done today in any way. Charitable funds were also used to technically equip the Department’s press service, which should have worked closely with media representatives and promptly covered problems and pressing issues. Which of the journalists has recently heard about the work of this service? Do journalists know that their permanent accreditation with the Department and the provision of broad access to correctional institutions without waiting months for permission was envisaged?

A great deal was done by the public and scientists to assist the penitentiary system in its time. That is precisely why, after the appointment of Mr. V. Koshynets to the post of Head of the State Department of Ukraine for the Execution of Criminal Punishments on March 21, 2005, many of us hoped for the continuation of the path of democratic transformation in the system.

II. The Failed Personnel Policy of the Head of the Department

In truth, many in the public were alarmed by the new Head’s professional incompetence in this position (after all, we no longer believe the Leninist slogan that a cook/tailor – or in our case, a gas industry worker – can successfully manage without having any legal or managerial knowledge). Moreover, the previous level of a district administration and a security agency with special status, closed and accountable to few, cannot be compared. But at that time, society was still in a state of “orange euphoria”—the long-awaited taste of freedom and democracy, which was just about to begin to take hold, proved so intoxicating that there were hopes for change for the better.

However, as it turned out, this appointment became a personnel mistake by the President of Ukraine because incompetence (legal and managerial) did not grow into competence; the system began to suffer from fever from within, especially after an extremely failed personnel rotation, when often random people, poorly acquainted with the specifics of the agency’s activity, were appointed to leadership positions, primarily at the regional level (people who had previously worked in the Ministry of Emergency Situations, the State Automobile Inspectorate, the police, who had been dismissed from internal affairs agencies, etc.).

Thus, the head of the Department’s main headquarters (which is responsible for the legal support of the system, rule-making, analysis of processes taking place in correctional institutions, and international relations) was appointed and “worked” for a while as a Major General of the Ministry of Emergency Situations, who later returned to his native agency and is now successfully fighting natural emergencies and man-made disasters.

Individuals were appointed to leadership positions in the Department’s Directorate in the Donetsk region who, after a few months of work (for the first time in the history of the penitentiary system!), were arrested in early 2006 for extortion and receiving so-called “kickbacks” in large amounts for using budget funds for the benefit of certain firms, bypassing transparent tender procurement. Is this not why the prices for food products in the institutions of the Donetsk region, which were proposed to be purchased by convicts, grew to insane proportions?

A number of regional leadership positions were filled by police officers who understand operational work better than the observance of human rights, and for whom it is more habitual to impose police methods of work on the activities of subordinate institutions than to consider respect for human rights and helping them return to society.

Thus, a police colonel from the Department Head’s native Ivano-Frankivsk region was appointed head of the Department’s Directorate in the Lviv region, and within a few months, there were group attempts by convicts to commit self-mutilation due to the brutal neglect of their rights, and, for the first time in the history of Ukraine’s prison system, an open protest by employees of the Lviv remand prison against their manager for humiliation, disrespect, and abuse of office. An inspection of these events by the Lviv regional prosecutor’s office confirmed that they had occurred as a result of illegal actions and official abuse by the heads of these institutions.

Similar events that resonated with Ukrainian society (convicts refusing to eat, self-mutilation, attempted self-immolation, protests against the administration of correctional institutions) occurred in both 2006 and 2007.

During these years, an almost complete rotation of senior regional management took place, many heads of correctional institutions were changed, but the situation only worsened. For example, replacing the head of the Department’s Directorate for the Execution of Criminal Punishments in the Kharkiv region—who had indisputable high authority among both convicts and system personnel and local authorities—with a “regime-oriented” manager, for whom adherence to regime requirements stands far above respect for convicts and their rights, led to “tightening the regime screws,” and, as a consequence, swift protests by convicts in the region, attempts at self-mutilation, etc.

Another newly appointed regional-level head, a product of the police force (a police colonel at the time, by the way), interpreting the ethics of relationships with subordinates in a peculiar, police-like manner, publicly (in the presence of institution employees and convicts) slapped the head of an institution, and the latter was forced to resign shortly thereafter.

The style of “management” of one of the correctional institutions is evidenced by a letter from the employees of the Irpin Correctional Center No. 132 (2007) to human rights organizations (the letter was widely circulated at the time by human rights organizations via the Internet and email). We will quote a few paragraphs from this letter:

“We, the employees of the Irpin Correctional Center No. 132, are appealing to you with a request to protect our rights and legitimate interests.

The essence of the matter: O. A. Antonyuk has been the head of our institution for the last few years. The personal and professional qualities of this ‘manager’ do not withstand any criticism. Every working day, the institution’s employees were forced to listen to groundless rudeness, insults, and obscene language from him. Furthermore, he also violates our rights guaranteed by current labor legislation, forces the institution’s staff to work overtime and on weekends, and constantly threatens dismissal without any legal reason for doing so. We have repeatedly complained about this to the leadership of the Department for the Execution of Criminal Punishments, but everything has been to no avail.

Therefore, when O. A. Antonyuk was dismissed from the post of head of our institution, all employees sighed with relief....

At the same time, O. A. Antonyuk is trying to challenge his dismissal in court and be reinstated. In the event of his reinstatement as head of the institution, our center’s employees reserve the right to take disproportionate collective measures—a strike, a collective petition for a transfer to other work. We also report that our opinion and intentions are also supported by the majority of convicts...”

Today, the Department’s personnel policy and attitude toward subordinates have become so distorted that a portion of the competent staff was forced to resign. Even the heads of the Department’s Central Apparatus, who had worked in the system for a long time, could not withstand the constant psychological pressure, stress, and unethical treatment and left their jobs. They frankly note: “Today, one day of work with these managers, in terms of tension, shouting, and disrespect, is equivalent to the tension of six months of work with the previous Department leadership.”

Heads of correctional institutions are afraid to show any initiative. Under the threat of dismissal, they are required not to allow any leakage of negative information, especially when it concerns brutal violations of convicts’ rights, beatings, or physical responses to hunger strikes and protests.

And you, gentlemen human rights activists and journalists, demand openness of the system and public control over the unconditional observance of human rights, when everything in it is done to make it impossible for information about the illegal or unlawful actions of the administration of correctional institutions to leak, preventing you from making an independent assessment of the situation, only to then “feed” you such, we quote, official information:

“On February 3, 2008, the Vinnytsia Human Rights Group distributed an urgent report about a hunger strike by convicts at Correctional Colony No. 123 in protest against the cruelty of the administration. For 3 days, a commission worked at the Lytyn Colony, consisting of representatives of the Department..., a representative from the Secretariat of the Commissioner for Human Rights..., and the Vinnytsia Regional Prosecutor’s Office.

We officially declare that the facts published by the Vinnytsia Human Rights Group have not been confirmed and do not correspond to reality.”

Here we will not remain silent that the inspection was carried out by the leadership of the Department itself, that three former employees of the Department work in the penitentiary institutions department of the Secretariat of the Commissioner for Human Rights and are involved in the inspections, and that the local prosecutor’s office is not interested in spoiling relations with the leadership of the regional Department Directorate. Therefore, the public has no grounds to believe in the objectivity of this and many similar investigations. After all, nothing prevented them from involving a representative of the Vinnytsia Human Rights Group and at least one journalist in an independent evaluation of this fact. The law does not forbid this! The Department’s leadership cannot even grasp that in the event of involving the public in an inspection and the non-confirmation of this fact, the Department would have received undeniable advantages and a significantly higher rating among the public and the media. But for this, one must first at least grasp the advantages of even one element of the system’s openness, even in a single episode...

Precisely for this reason, the personnel policy of the Head of the Department, Mr. V. Koshynets, can be considered failed and extremely incompetent, as can the failure to ensure strict adherence to legality in the activities of the penitentiary service and human rights.

This was stated directly to him in May 2006 on the program “Svoboda Slova” (Freedom of Speech) by the then Minister of Justice of Ukraine, S. Holovaty, who called on Mr. Koshynets to immediately write a letter of resignation. As we can see, Mr. Koshynets has not yet written the letter and has hidden under the patronage of the President of Ukraine.

And meanwhile, negative phenomena in the State Penitentiary Service have continued to grow.

III. Critical Analysis of the State of Affairs in the State Penitentiary Service

In order to determine the further status of the State Department of Ukraine for the Execution of Criminal Punishments and the ways of its reform, it was planned to hear the issue regarding the state of affairs in the penitentiary system and existing problems at a meeting of the National Security and Defense Council of Ukraine in September-October 2006. Human rights organizations proposed the following inspection structure to the NSDC Secretariat and the interdepartmental commission on preparing this issue, which contained clarification of a number of quite sharp and unpleasant questions for the Department’s leadership (I present it in full so that the reader can see how deep, full, and critical the analysis proposed by scientists and human rights activists was intended to be):

Section 1. General Information About the Penal System

· Legislative support for the activities of the penitentiary system and its quality;

· Presence/absence of a sound long-term strategy for the development/reform of the system (whether such attempts were made during the 8 years of the State Department’s existence as an independent government management body, the content of the concept/strategy, whether it provides for fundamental reform of the penitentiary system, whether scientific forces were involved in its development);

· Effectiveness of the implementation of previous government programs and decisions on bringing the conditions of detention of convicts into compliance with international standards (effectiveness of the use of budget funds under these programs, identified violations, consequences of their investigation);

· Regulatory support for the system’s activities and its compliance with the legislation of Ukraine and international standards for the treatment of prisoners (draft regulatory acts developed by the Department during its activities and aimed at improving its work, improving the conditions of detention of convicts, and the material provision of personnel); Did such documents undergo scientific expertise and public discussion?

· Conclusions, with a comprehensive analysis of the reasons hindering the reform of the penal system;

Section 2. Inmates and Convicts in Correctional Institutions

· Structure of the bodies and institutions for the execution of punishments, occupancy of remand prisons and correctional colonies, what explains the decrease in the contingent of inmates and convicts;

· Characteristics of the conditions of detention of convicts (separately highlight the conditions of detention of minors, convicted women, persons sentenced to life imprisonment, and persons in inter-regional and tuberculosis hospitals) and their compliance with international standards;

· Material and living conditions of convicts, nutrition standards, real expenses for nutrition, and its ration;

· Medical and sanitary support for convicts; status of infectious and somatic diseases; characteristics of the quality of medical service personnel, quality of treatment and disease prevention, including tuberculosis, drug addiction, HIV/AIDS, hepatitis, and other somatic and infectious diseases; appropriateness of spending allocated budget funds on the treatment of convicts;

· Status of human rights observance (analysis of typical violations of convicts’ rights, facts of torture, abuse of office, humiliation of convicts, activities of special units during “cleansings” and searches with gross violations of human rights, which caused such resonance in several prisons in 2005-2006; response to complaints and statements of convicts or their ignoring);

· Status of disciplinary practice regarding convicts (types of disciplinary violations, nature of disciplinary punishments, proportionality in their application);

· Opportunity for convicts to exercise their rights to education, profession, work, correspondence, and maintaining social contacts with the external environment;

· Organization of the industrial activities of the penitentiary system;

· Average wages of working convicts (comparative analysis for three years);

· Cost of maintaining one convict (comparison for three years);

· Status of wage arrears for convicts. What are the reasons for its emergence? What measures is the Department taking for its repayment?

Section 3. Personnel Support

· Quantitative and qualitative characteristics of the penitentiary system personnel (qualification, level of education, competence, managerial skills of administrative personnel, staff turnover, educational institutions for basic and professional training of personnel, disciplinary practice regarding employees of correctional institutions);

· Analysis of personnel policy since March 2005, how many new heads of regional directorates and their deputies, heads of correctional institutions were appointed, the previous workplace of the new management, the presence of previous unexpended disciplinary penalties before appointment, justification for the appointment of former police officers or persons who compromised themselves during service in internal affairs agencies or other security agencies to leadership positions; manifestations of cronyism and nepotism when appointing new officials;

· Status of corruption and abuse of office, primarily by the leadership of the bodies and institutions for the execution of punishments (when conducting tender purchases; when resolving issues of transferring convicts from one region to another, closer to their previous place of residence; release due to illness; resolving issues of parole; mitigation of conditions of detention; illegal smuggling of drugs, alcohol, money, and currency into the institution);

· Disproportion in the remuneration of rank-and-file employees of the bodies and institutions for the execution of punishments and the leadership of the Central Apparatus and regional directorates, which differs by tens of times (comparison of percentages of various allowances, bonuses, justification for their assignment to themselves by departmental orders); What is the average bonus allowance for the heads of the Central Apparatus and regional directorates in comparison with employees of institutions for the execution of punishments (give in percentages and monetary terms);

· What number of employees were hired for work in the last 3 years and their previous places of work? What number of employees quit their jobs in the last 3 years? Analysis of the reasons for the dismissal of employees;

· What number of the leadership of the Central Apparatus and regional directorates was dismissed/hired in the last two years; reasons for the dismissal of management personnel, general characteristics of the professional competence and moral qualities of the appointed managers (who previously worked in internal affairs agencies, other security agencies, were retired, or worked in civilian agencies and institutions). What guided the Head of the Department when appointing individuals who had not worked in the penitentiary system before to leadership positions?

· Does the Department have developed and tested criteria for evaluating the professional qualities and managerial skills of the leadership?

· Is the practice of inviting representatives of the public, non-governmental organizations to meetings of attestation commissions at the bodies and institutions of the penitentiary system practiced (as was done in internal affairs agencies)?

· What is the state of affairs regarding housing provision for the system’s employees? Number of employees not provided with housing. Number of employees in need of improved living conditions? State the number of employees who have been on the housing waiting list for over 5, 10, and 15 years; Number of employees who received housing over the last 3 years (including the leadership of the Central Apparatus, regional directorates, and heads of institutions who were recently appointed and were not on the housing waiting list at their new place of work); Give examples of targeted allocation of funds for the purchase of housing for newly appointed managers (was the opinion of the institution’s collective taken into account in this process?);

· Number of criminal cases initiated against system employees in connection with the performance of their official duties; Number of disciplinary proceedings initiated against system employees; Does the Department control the situation with official abuses by the heads of bodies and institutions for the execution of punishments by means of surveys of employees and convicts? How often is such independent monitoring conducted and what are its consequences;

Section 4. Appeals and Complaints to the Department’s Bodies and Institutions

· Information regarding appeals and complaints from citizens (total, including repeated, collective, broken down by region and subject); nature of these appeals, response to them in accordance with the terms defined by legislation; does the response received to the complaint satisfy the citizens:

· Analysis of typical violations of convicts’ rights (responses and conclusions based on them);

· Analysis of complaints from convicts (oral, written) regarding the activities of the Department’s special units, which caused a serious resonance in institutions and society.

Section 5. Openness of the Penitentiary System

· Openness of the penitentiary system, communication of the Department’s leadership and heads of regional directorates with representatives of the public and the media, providing them with sufficient information about the system’s activities, press conferences and announcements of planned events, reflection of regulatory acts and events on the website, as required by government resolutions on the openness of government bodies; activities of the Public Council under the Department, state of cooperation with the public; opinions of journalists and the public about the openness of the system, possibility of access to correctional institutions and to information; double standards of the Department’s leadership in this regard;

Section 6. Proposals for Priority Measures to Reform the State Penitentiary Service

· Conclusions with an analysis of the reasons hindering the cardinal reform of the penitentiary system. General conclusion: is the Department’s leadership capable of independently carrying out these steps (competently, openly, transparently, prudently), or does it really need political direction, coordination, and control;

· Proposals for urgent priority measures in the direction of implementing penitentiary reform, which must be reflected in government documents/programs.

It was proposed to prepare an analytical note by: analyzing the legislative and regulatory framework, the Department’s reports for recent years, materials of the Department’s board and other departmental materials, analysis of inspections by the General Prosecutor’s Office, the Accounting Chamber, and the Tender Chamber, the Verkhovna Rada Commissioner for Human Rights, information from the Ministry of Education and Science, the Ministry of Health, the Ministry of Labor and Social Policy, appeals and complaints from convicts, and materials from human rights organizations.

By the way, it is not too late for the Government of Ukraine, if it truly wants to have a real picture of the state of affairs in the State Penitentiary Service and take decisive steps in the direction of fundamentally reforming the prison system, to use the list of these issues developed by experts for a deep and principled inspection of the Department.

Upon receiving only a small part of this list of questions, the Department’s leadership was in a certain state of shock and began to delay the preparation of its report for the NSDC meeting, which was pointed out directly several times at meetings of the working group on preparing the issue by the then Deputy Secretary of the NSDC, Yu. Petrochenko (September-November 2006).

Unfortunately, the delay by the Department’s leadership in providing full and objective information kept postponing the consideration of this issue until 2007, when more pressing problems related to energy security and the political crisis arose in the state. Therefore, the issues of the Department’s activities, which required sharp, principled, and open discussion, were never considered.

Nevertheless, representatives of human rights organizations prepared their part of the report, extracts from which we are publishing with conclusions that have become even more relevant today.

On the State of Activity of the State Penitentiary Service of Ukraine and Ways of Its Reform

1. Tasks of the State Department of Ukraine for the Execution of Criminal Punishments

According to the Regulation on the State Department of Ukraine for the Execution of Criminal Punishments, approved by the Decree of the President of Ukraine of July 31, 1998, No. 827, the main tasks of the Department are:

implementation of a unified state policy in the sphere of execution of criminal punishments;

development of recommendations on the organization of the detention of persons taken into custody, ensuring the execution of court sentences and the application of means of correction and re-education of convicts provided by law; ensuring the compulsory treatment of convicts suffering from alcoholism and drug addiction;

ensuring compliance with the requirements of legislation in the bodies and institutions for the execution of punishments, prevention of crimes, disciplinary offenses by persons sentenced to deprivation of liberty, their suppression and detection, investigation of crimes committed in the bodies and institutions for the execution of punishments, implementation of operational-search activities;

management of bodies and institutions for the execution of punishments, organization of industrial and economic activities by providing work to convicts, ensuring their professional training and general education;

legal and social protection of rank-and-file and senior personnel, employees of the penitentiary system, and members of their families; improvement of work with personnel and their professional training.

Proceeding from the tasks assigned to the Department, the Government adopted Resolution No. 167 on February 15, 2002, “On Approval of the Program for Further Reform and State Support of the Penitentiary System for 2002-2005,” which determined the main directions of the reform.

The program directed the reform of the penitentiary system, first of all, toward the social reorientation of the execution of criminal punishments, taking into account international experience, the principles of humanism, legality, democracy, justice, and differentiated and individual educational influence on convicts through the reorganization of the system of execution of punishments and the adoption of a new Criminal-Executive Code of Ukraine and the Law of Ukraine “On the State Penitentiary Service,” in the development of which international norms and standards and the experience of European countries were to be taken into account.

Reform was envisaged to be carried out in four main directions:

- improvement of the regulatory-legal regulation of the activities of the penitentiary system;

- strengthening the material base of the bodies and institutions for the execution of punishments;

- improvement of conditions for the detention of prisoners, introduction of new forms and methods of work with convicts, strengthening educational influence on them, ensuring effective social adaptation;

- improvement of personnel support for bodies and institutions for the execution of punishments.

The reform envisaged fundamental changes in the conditions of detention of prisoners, the procedure for the execution and serving of punishments, bringing the conditions of detention of prisoners and convicts into compliance with international standards in accordance with conventions ratified by Ukraine, and clear regulation of issues of material-living and medical-sanitary provision, and the provision of psychological and pedagogical assistance to convicts.

It was envisaged to significantly improve the work on the selection, training, and education of the penitentiary system’s personnel, their social and legal protection, strengthen the material-technical base of its own educational institutions, develop job qualification requirements for the main categories of employees, on the basis of which to carry out careful selection of personnel for the bodies and institutions for the execution of punishments.

Unfortunately, the Cabinet of Ministers of Ukraine did not return to the consideration of this issue again. A comprehensive analysis of the implementation of the government program was not conducted, the issue of the state of reform of the penitentiary system was not heard and was not widely covered anywhere. Therefore, there are no grounds or arguments in favor of the successful implementation of this program.

Nevertheless, on August 3, 2006, the Cabinet of Ministers, by its Resolution No. 1090, approved the State Program for Improving the Conditions of Detention of Convicts and Persons Taken into Custody for 2006-2010. The main tasks of the Program are practically the same directions that were approved in the 2002 resolution: improvement of the system of organizational-legal provision for the functioning of the State Penitentiary Service; bringing the conditions of detention, medical-sanitary, and living provision of convicts and persons taken into custody into compliance with the requirements of legislation; promotion of the activities of the system’s enterprises; strengthening the material-technical base of educational institutions (as if nothing significant had been done in these directions in previous years).

Based on this, representatives of the interdepartmental working group that prepared this issue for consideration by the National Security and Defense Council believed that the government in particular, and society as a whole, do not have a full, objective, and clear picture of the state of affairs regarding the activities of the penitentiary system. The reporting information that is periodically published by the leadership of the State Department for the Execution of Criminal Punishments in the departmental newspaper *Zakon i Obovyazok* or on the agency’s website declares the success of the penitentiary reform in Ukraine, however, this information concerns mainly the problems of conditions of detention of prisoners and convicts and economic activities, without touching upon a deep analysis of other issues that require cardinal changes, and showing the ways and real actions regarding reform (in particular, improvement of the system’s legal regulation, unconditional observance of the rights of convicts and promotion of the realization of their legitimate rights and interests, decentralization of management, improvement of management by bodies and institutions for the execution of punishments, raising the professionalism and competence of system employees, development and adherence to professional standards of activity, overcoming corruption and official abuses, scientific support for penitentiary reform).

2. Legislative and Regulatory Support for the Activities of the Penitentiary Service

The activity of the penitentiary service is regulated by the relevant law on service, adopted in 2005, and the activity of the penitentiary system—by the Criminal-Executive Code, adopted in 2003. The preparation of these legislative acts was carried out mainly by a working group consisting of the leadership of the State Department for the Execution of Criminal Punishments, who, in fact, themselves formulated the order and conditions of their activities and the execution of punishments. The draft law did not undergo proper scientific expertise regarding compliance with international standards for the treatment of convicts and human rights, and was not brought to a wide discussion by both the managerial penitentiary personnel and the legal community. Expert scientists and human rights organizations recognized that the law restricts the rights of convicts and the possibilities for public control over the system’s activities.

That is precisely why the adopted law contains a number of inconsistencies with international norms, in connection with which the Ministry of Justice of Ukraine initiated the justification and introduction of proposals to the current Criminal-Executive Code in 2006 regarding, in particular, the prohibition of discrimination against convicts on certain grounds and foundations, the lifting of restrictions on telephone conversations, the increase in living space standards for convicts from 3 to 4 square meters, an increase in the number of short-term visits with relatives, granting permission to convicts who have committed minor or moderate crimes the right to an annual paid vacation with travel outside the correctional institution, lifting restrictions on convicts receiving parcels and small packages, and improving conditions for the detention of minors and convicted women.

The analysis of the regulatory regulation of the activities of the State Penitentiary Service testifies to a certain legal discrepancy of regulatory acts with current legislation.

On one hand, this is evidence of the absence of qualified lawyers in the Central Apparatus of the State Department and its legal department, and, on the other, the non-fulfillment of the requirement of the Decree of the President of Ukraine of 2004 on the mandatory publication of every adopted departmental regulatory act within three days on the agency’s webpage for wide familiarization. Such a practice is completely absent, and regulatory acts are immediately sent to the bodies and institutions for the execution of punishments for practical guidance. Only after this are they sent to the Ministry of Justice for registration. Unfortunately, the Ministry of Justice formally registers such documents without conducting a thorough analysis of their compliance with the legislation of Ukraine and international standards for the treatment of prisoners and convicts.

That is precisely why such orders are issued and registered as Department Order No. 167 of October 10, 2005, “On Approval of the Regulation on the Special Purpose Unit,” which causes concern among the public and human rights organizations. Especially points 3.5, 3.6, and 3.9, during the execution of which there may be and there are significant violations of the rights of convicts. The main tasks of the special purpose unit consist of preventing and suppressing crimes of a terrorist orientation at facilities of the penitentiary system, as well as preventing and suppressing actions that disorganize the work of institutions for the execution of punishments and remand prisons.

However, the unit is also involved in conducting inspections and searches of convicts and persons taken into custody, their belongings, inspections of other persons and their belongings; it participates in ensuring law and order, compliance with the requirements of the regime, and internal rules in institutions for the execution of punishments and remand prisons. During such surprise searches, the unit, which has acquired the popular name “mask-show” (its “fighters” enter the correctional institution in masks on their heads, with full equipment: bulletproof vests, batons, handcuffs, tear gas), allows brutal violations of elementary human rights. According to verified data from many reports by human rights organizations, the pattern of their actions is always the same. These “fighters” burst into the cells of a remand prison or living quarters of colonies with the shout “everyone lie on the floor!”, then begin to walk with their feet on the lying convicts, beat them with their feet and batons on various parts of the body and the head. They force everyone in turn to run into the corridor between lines of lined-up “fighters,” who continue to beat them with batons, force them to squat or sit in a “split,” crawl on the floor, do a hundred squats, and do push-ups from the floor. Another part of the “fighters” stages a complete pogrom of the convicts’ personal belongings, destroying things and food, mixing sugar with tobacco and washing powder, pouring tea and coffee on the floor, and appropriating cigarettes, canned goods, lighters, chocolate, chewing gum, etc.

It is precisely as a result of such lawless, humiliating, and brutal actions by special units that convicts resort to protests, riot, and cut their veins. Letters from convicts and their relatives arrive at the office of the Verkhovna Rada Commissioner for Human Rights, the prosecutor’s office, and human rights organizations with a detailed description of the “actions” of the special units, which are then passed to the mass media and posted on many information websites. One of these collective letters with the signatures of convicts of the institution for the execution of punishments No. 47 of the Lviv region dated April 20, 2006, and the events at the Kharkiv remand prison caused a serious resonance in society, leading to a series of thematic TV shows and talk shows on television channels.

However, the reaction of the State Department for the Execution of Criminal Punishments to the protests of convicts is almost always the same: “information is not confirmed.” And although such phenomena occur quite often, no one from the system’s employees has been brought to criminal responsibility specifically for torture, humiliating treatment, and gross violation of human rights.

An important problem that causes mass violations of human rights in institutions for the execution of punishments is the absence of a clear and effective mechanism for submitting complaints by convicts. There are practically no guarantees against the arbitrariness of the administration in matters of sending correspondence, and censorship has been introduced (Department Order No. 13 of January 25, 2006, “On Approval of the Instruction on Organizing the Review of Correspondence...”). Even a letter to the Verkhovna Rada Commissioner for Human Rights and the prosecutor must be sent by convicts in the presence of an employee of the institution. Obviously, there must necessarily be mechanisms that will take into account safety factors for the operation of institutions for the execution of punishments. In the specified mechanisms, the needs of convicts to communicate with the outside world must be balanced, and their right to privacy must also be ensured.

Selectively analyzed regulatory documents of the State Department and the facts provided testify to the serious legal incompetence of the leadership of this executive body, which sometimes leads to gross violations of human rights and resonant events in the penitentiary system. Unfortunately, not a single document was brought to public discussion or expertise.

Remark: As a result of prolonged pressure from the Chernihiv Women’s Human Rights Center on the Ministry of Justice of Ukraine and the General Prosecutor’s Office of Ukraine, the Ministry of Justice took into account the legal arguments presented by the organization and, by its order of December 26, 2007, No. 1302/5, canceled the Department’s order of January 10, 2005, No. 167, “On Approval of the Regulation on the Special Purpose Unit.” However, the Kharkiv Human Rights Group recently received a report that on January 31, at 6:30, a group of approximately 25 special forces soldiers in masks with full combat equipment was brought into Colony No. 46, which is located near the village of Katerynivka, Sarny district, Rivne region. They brutally beat 16 convicts, so much so that the beaten are still barely able to move. But the Department’s order was canceled by the Ministry of Justice a month ago; it is not in effect. This means that the actions of the special unit and the managers who gave such an instruction are a gross violation of legality.

Expert assessment of other regulatory acts of the Department, which were registered by the Ministry of Justice at the time, has now been completed, and a portion of them have been recognized as not corresponding to the Constitution of Ukraine, national legislation, and international standards for the treatment of prisoners. These regulatory acts must also be reviewed or canceled. Here is your legal nihilism of the Department’s leadership, which incessantly speaks of respect for human rights, European integration, and bringing the system’s activities into compliance with generally accepted European standards. Could this be the double standards typical of the system: assuring the international community and Ukrainian society of the primacy of human rights, while doing whatever we want ourselves?

3. Funding of the State Penitentiary Service

Over the last 10 years, the funding of the penitentiary system has been insufficient, which significantly complicates the resolution of issues of useful employment of convicts, material-living provision, nutrition, and medical service.

In 2007, 49% of the required funding was allocated for the system’s maintenance.

The Department compensates a portion of the funds for the maintenance of the system at the expense of income from labor use, which constitutes 50% of the charges on the wages of the special contingent and is defined in the estimate of the penitentiary system by the Law of Ukraine “On the State Budget of Ukraine for 2007” in the special fund.

In accordance with Article 118 of the Criminal-Executive Code of Ukraine, every convict must work. The administration of institutions must ensure the involvement of convicts in work, as a rule, at the production facilities of these institutions, and in separate cases—on a contract basis at state or other forms of ownership enterprises.

In 2006, the average wage of convicts was 134.4 hryvnias, for 2007 – 166.7 hryvnias, which is lower than the minimum wage established by the state. Wages over the last three years have almost not changed.

The requirements of current legislation on providing all convicts with work are not being fulfilled—today, approximately only 21% of able-bodied persons are taken out for paid work (although in previous years, which were significantly worse in economic terms, 30-40% of convicts worked a full working day). This, in turn, leads to them not reimbursing the costs of their maintenance and not paying for lawsuits based on executive orders for crimes committed. As of January 1, 2007, the amount of such lawsuits reached an astronomical figure of 502 million hryvnias! And only 15 million hryvnias (?) was reimbursed by convicts for the entire year, or 3% of the total debt. With such an organization of the use of convict labor, the victims of the committed crime, unfortunately, may not live to see the reimbursement of damages caused by theft, robbery, destruction of property, or a violent crime until the end of their lives.

Funds earned by penitentiary institutions are not used for the development of production, but are “eaten up” by the convicts.

4. Personnel Problems

In the State Penitentiary Service, there are 46,600 employees, of whom nearly 24,000 are responsible for ensuring proper supervision, safety, and security. Currently, the number of employees of the socio-psychological service, who are directly responsible for socio-educational work with convicts and promoting their resocialization, is slightly more than 2,000, or 4.5% of the total staff. Thus, according to the staffing schedule, the position of psychologist is allocated at a rate of one for 600 convicts, and a social worker – one for 100 people. Over the last 10 years, this calculation has not been reviewed or increased, which effectively minimizes the possibilities for the correction and resocialization of convicts as the goal of executing a criminal punishment.

The analysis of the remuneration of State Penitentiary Service personnel testifies to a certain social inequality and injustice: very low pay for employees of institutions for the execution of punishments and, in comparison, very high pay for the leadership of the Central Apparatus and regional directorates of the State Department.

The average wage of an attested colony employee (August 2006, at the time of writing the analytical report) is 870 hryvnias, regional directorate – 1806, central apparatus – 2650. The difference in remuneration between top managers and a rank-and-file employee is approximately 30 times.

For example. Calculation of the salary of a junior inspector of the supervision and safety department of the first year of service of one of the colonies for August 2006:

salary 100.00
rank 40.00
seniority/years 6.55
for work at night 1.59
100% allowance 146.55
monetary reward 250.00
special working conditions 70.00
bonus 18.23
Total 632.92 UAH.

Calculation of the salary of a junior inspector of the supervision and safety department whose length of service is more than 10 years:

salary 100.00
rank 60.00
seniority years 40.00
for work at night 1.59
100% allowance 200.00
monetary reward 250.00
special working conditions 80.00
bonus 24.08
allowance for continuous service 151.70
Total 907.37 UAH.

Salary of an institution unit head (first year of service) – 613 hryvnias 03 kopecks (monthly bonus 5% - 29 hryvnias 19 kopecks).

Salary of a unit head who has 10 years of work experience is – 971 hryvnias 78 kopecks (bonus allowance – 5% - 35 hryvnias 60 kopecks).

In 2007, the salary for employees of institutions for the execution of punishments was somewhat increased and averaged: 987 hryvnias for junior commanding staff, 1278 hryvnias for middle, and 2611 hryvnias for senior and higher staff.

If the bonus allowance of rank-and-file employees on average constitutes 5% (up to 50% is allowed), then for the leadership staff it fluctuates from 50 to 90%, which in monetary terms reaches several thousand, and for top managers – to several tens of thousands of hryvnias (information for verification by competent authorities: from what sources and in what volume did the bonus allowances of the Department’s leadership reach astronomical figures in the tens of thousands of hryvnias in December 2007, which neither people’s deputies nor ministers ever dreamed of). At present, the rank-and-file staff of institutions for the execution of punishments, who work directly with convicts and risk their lives and health every day, received a bonus in the amount of 300-400 hryvnias based on the results of work for 2007. This fact must become a subject of careful study, because we, the citizens—taxpayers, have the right to know where the budget funds, also accumulated from our taxes, are going. And why does such brazen social injustice reign in this system?

Material assistance for recreation when taking a vacation also differs significantly: 100 – 300 hryvnias for rank-and-file employees, 5 – 6 thousand hryvnias for heads of correctional institutions and regional directorates.

As a result, discontent among the penitentiary service personnel is growing. A survey of employees of remand prisons in the Chernihiv region, conducted in August 2006, shows that 67.9% of respondents evaluate their level of monetary provision as unsatisfactory, and 64.3% evaluate the level of social protection as unsatisfactory.

Constant staff turnover is characteristic of the penitentiary service. Thus, in 2005, 4,170 people quit; in 2006, nearly three thousand people.

Material difficulties push some employees, who are endowed with power and are called upon to observe the laws, to official crimes and abuses. This primarily involves extortion, blackmail, trade in privileges, and bringing money, drugs, or alcohol into the colony for a certain reward. Mainly, operational employees who hide behind secrecy and operational necessity are guilty of this. Operational positions are often occupied by people who do not have sufficient experience in a correctional institution and are characterized by low moral qualities and ambition.

In the State Penitentiary Service, there are no developed and tested criteria for evaluating the professional qualities and managerial skills of the leadership; there is no position of psychologist for personnel, and the practice of inviting representatives of the public, non-governmental organizations to meetings of attestation commissions at the bodies and institutions of the penitentiary system is not practiced (as is done in some internal affairs agencies). As a result of the forced personnel rotation in 2005, the vast majority of sufficiently competent and professional heads of regional directorates and correctional institutions, as well as a portion of the Central Apparatus leadership, who could still work, were dismissed. New people were appointed to the positions of the dismissed managers, who turned out to be either insufficiently competent or unprepared to manage in the new conditions. Some of them are former employees of internal affairs agencies who had penalties at their previous jobs and should not have held leadership positions due to their moral qualities. There are manifestations of nepotism, when one’s own people are appointed to leadership positions in the Central Apparatus or regional directorates based on loyalty or cronyism (let’s make a request: how many people from the Ivano-Frankivsk region were appointed to economic and financial positions in the Department, and You will be surprised. Even the director of the museum of the State Penitentiary Service was appointed a student of an Ivano-Frankivsk university). According to information from institutions for the execution of punishments, extortion by regional-level leaders is practiced.

In 2005, the State Department of Ukraine for the Execution of Punishments received 350 appeals concerning the unlawful actions of departmental staff (a total of 8,164 complaints were lodged with state authorities regarding prison conditions, inhumane treatment, and the violation of the legal rights of convicts, among other issues).

Regarding the complaints about the unlawful actions of staff (based on the Department’s own findings):

- facts were confirmed – in 17 cases,

- partially confirmed – 80,

- facts were not substantiated – 253.

Throughout 2005, 6,168 individuals were held disciplinarily liable for various reasons. In total, during 2005, 12 criminal cases were initiated against 13 individuals, including the head and the deputy head of the State Department for the Execution of Punishments in the Donetsk region for abuse of office, bribery, and the misappropriation of state funds on a large scale. Six former employees of the State Criminal-Executive Service were convicted. Under Article 127, Part 3 (torture), one person was held criminally liable.

This situation suggests that the Department has no control over the abuse of office by the heads of penal institutions, the Internal Security Service is not functioning properly, and independent monitoring via surveys of staff and convicts is not being conducted. If such monitoring were in place, there would not have been mass attempts at self-mutilation in penal institutions, as occurred in 2005–2006 in the colonies of the Kharkiv, Lviv, and Rivne regions.

In 2006, courts held 46 employees liable for corrupt activities, and in the first 9 months of 2007, another 33 employees. However, corruption is significantly more widespread, as narcotics, alcohol, and prohibited items are smuggled into practically every correctional facility. For a certain fee, one can allow a convict the opportunity to make a call from an official’s mobile phone. Last year, in pre-trial detention centres, where it is significantly harder to smuggle prohibited items, 3,675 hryvnias, 2,050 litres of homebrew, 1,049 decks of playing cards, and 2,851 units of sharp or cutting implements were seized over 6 months. Someone must have brought them into the strictly controlled detention centre. Yet, society is then surprised by the murders of prisoners in these facilities.

5. Transparency of the penal service and cooperation with the public

In recent years, the criminal-executive service has not become more open to society, public organisations, or the media. Today, only those public organisations that are neutral or loyal to the Department’s leadership have the opportunity to cooperate with penal institutions; they are involved in social and educational work with convicts and provide them with psychological, legal, and social consultative assistance. Human rights organisations that champion the rights of convicts and offer sharp criticism of the Department’s leadership—for which the first head has been ‘awarded’ the humiliating ‘Burdock of the Year’ title for two years in a row—have no access to correctional facilities, much like those media representatives who publish critical materials.

Remark: Gentlemen of the press, are you aware that the Head of the Department maintains a ‘black list’ of media outlets, television channels, and individual journalists who are unlikely ever to be granted access to a correctional facility, allowed to conduct an interview, or permitted to cover any high-profile event? Remember that your constitutional right to information is being violated!

According to the Criminal-Executive Code, supervisory commissions created under regional, city, and district administrations have the right to exercise public control over the penal system and the observance of prisoners’ rights. However, the leadership of some regional departments may simply ignore the requirements of the law and refuse to admit members of supervisory commissions into penal institutions. We shall illustrate this practice with just one example.

The information is taken from a report by H. Kornievsky, Deputy Chair of the regional supervisory commission under the Volyn Regional State Administration, addressed to the chair of the regional supervisory commission and first deputy head of the regional state administration, V. Zaremba. The report states that on 10 and 19 October, with the permission of V. Makogonchuk, head of the Department for the Execution of Punishments in the Volyn region, creative concerts by artists from the Volyn Regional Philharmonic, organised by the regional supervisory commission, were scheduled to take place in two of the region’s institutions. However, the organiser of these concerts, H. Kornievsky, was denied entry to the events on the instructions of I. Stefanovsky, first deputy head of the Department, who simply used an oral directive to cancel his superior’s written permission, thereby obstructing the work of the regional supervisory commission through his unlawful actions. A similar refusal occurred on 26 October 2006, when the same I. Stefanovsky refused to allow a representative of the supervisory commission into another institution for a charity concert, despite the fact that his direct superior, V. Makogonchuk, had been informed of the action.

On 29 January 2007, the first deputy head of the Volyn Regional Administration and chair of the regional supervisory commission, V. Zaremba, addressed a letter (No. 385/46/2–07) to the head of the regional Department, V. Makogonchuk, requesting assistance in conducting a charity event for convicts in two correctional facilities and prisoners in the pre-trial detention centre, which would involve the delivery of food and basic necessities to the convicts. On the same day, V. Makogonchuk, head of the regional Department, endorsed the letter with the resolution: ‘Heads of institutions are to assist in the conduct of the charity action in accordance with existing law’.

To avoid wearying the reader, I hope you have already guessed that, despite the head of the Department’s permission, his deputy I. Stefanovsky’s order forbade the entry of a single participant in the event dedicated to the Christmas holidays into the two correctional facilities, preventing them from handing over the food and basic necessities.

So, what kind of head of department is this, whose permissions are systematically ignored? And what is the status of the first deputy governor in the region if his legal authority as the chair of the regional supervisory commission is simply disregarded? And who is this ‘local princelet’ I. Stefanovsky, who not only undermines the authority and powers of his superior but brutally ignores the requirements of the law and the Cabinet of Ministers’ resolution of 1 April 2004, No. 429, ‘On Approval of the Regulation on Supervisory Commissions’, obstructing the activities of a commission which, moreover, was not coming to the convicts for inspections, but with charity events, creative concerts, and food products provided free of charge by charitable foundations?

Do creative groups arrive at the convicts’ correctional facilities all the time anyway? Is the ration of food and basic necessities, which the convicts themselves must pay for out of their meagre earnings, so rich that one must deny them charitable aid? Or is this perhaps a ‘pleasure’ of power—when I feel like it, I let them in, when I feel like it, I refuse—and convicts are not human, so why respect their rights?

On 5 April 2007, V. Zaremba, first deputy head of the Volyn Regional State Administration, again requested permission from the Departmental Directorate to assist in a charity event for Easter in the Kovel educational colony... Well, the scenario is already familiar by now...

The supervisory commission of the Volyn Regional State Administration has repeatedly informed the regional prosecutor’s office about the obstruction of its activities, but no changes have occurred. The leadership of the State Department was informed of the unlawful actions of one of the regional administration heads, yet nothing changed. Furthermore, the Department’s leadership nominated Mr Stefanovsky in mid-2007 for an award from the Cabinet of Ministers of Ukraine! Are leaders who obstruct the activities of public organisations and violate the law particularly valued? Now, this I. Stefanovsky very much wants to become the head of the regional administration and to continue standing guard over the prisons of the region. He couldn’t care less about the opinions of government bodies and the public. Or perhaps we do not need such local ‘mini-rulers’? Yet, despite any criticism, they continue to work quietly, receive decent salaries at the expense of our taxes, and even get bonuses for their ‘strenuous’ efforts in the field of reforming the criminal-executive system.

This is how they work with the public in Ukraine. Perhaps this case is not highly typical, but information from various regions confirms such a tendency. In reality, the Department’s leadership is afraid of both the general public and persistent journalists, and openly demonstrates its unwillingness to work with them. This is especially true when it concerns information about high-profile events that took place in 2005–2007, the abuse of office by staff, and human rights violations. There is a lack of transparency in decision-making and in responding to complaints from citizens serving sentences. The service’s normative documents are not published on the Department’s website, as required by a government resolution, nor do they undergo scientific expertise to ensure consistency with international standards for the treatment of convicts or with the current legislation of Ukraine (for your information: the Department’s apparatus does not have a single competent lawyer; even the position of head of the legal department has remained vacant since the announcement of a competition in May 2007). Public discussions with the legal community and human rights organisations regarding documents that pertain to human rights are not practised.

The review of high-profile complaints from convicts is non-transparent and private, without the admission of lawyers or human rights activists. That is precisely why a traditional, formal response to a significant number of complaints and applications, stating that ‘according to internal investigations, the facts set out in the complaint were not confirmed’, is hardly acceptable. And this applies to hundreds of submitted complaints and applications. Is it possible that the convicts, who often suffer from brutal treatment and the neglect of their rights, and their relatives, who have had the opportunity to see their sons beaten with batons, and human rights activists, who often receive such information directly from penal institutions (today, it is not difficult to pay for the right to a phone call from a mobile phone used by the institution’s staff), and lawyers and journalists are all making this up?

If so, then include in the composition of commissions investigating such reports of gross violations of convicts’ rights, attempted self-mutilation, or hunger strikes, a human rights activist, journalist, or lawyer, so that they can see for themselves whether the incident took place or not. Or, following the example of the Ministry of Internal Affairs, which for two years has been actively practising the use of independent mobile groups to check the observance of the rights of detained persons in district/police departments and temporary detention centres, agree (at least in one or two regions as an experimental measure) to the creation of such groups composed of staff from the prosecutor’s office, the bar, human rights activists, and journalists. And there is no need to hide behind the law, because the law (namely the Criminal-Executive Code, Article 24, Clause 2) empowers the administration of institutions and regional penal bodies to issue such ‘special’ permits for who is allowed into colonies. We do not live in a totalitarian, closed state, but in one where all government institutions proclaim loyalty to democratic values, respect for human rights, and openness and transparency of activity. Or does it all remain only on paper, as it sounds from the pages of every issue of the Department’s departmental newspaper ‘Law and Duty’ and in every public speech by the agency’s heads, but is not confirmed by any effective action?

There is no established system of constant communication between the leaders of the Department and its regional offices and journalists or representatives of human rights organisations, nor the provision of ongoing information about the service’s activities, as is done by the heads of other law enforcement agencies (weekly or fortnightly press conferences). The executive body’s press service adopts a passive position, not providing any information without the permission of the service’s leadership. Announcing planned events and submitting press releases or other information to news agencies is not practised. The Department still does not have permanently accredited journalists who would systematically cover the problems and specific steps regarding the reform of the criminal-executive system in the media. The Department’s website does not contain any problematic or critical information. In this respect, the Department’s information resource falls significantly short of similar resources belonging to other law enforcement agencies.

With the aim of public participation in the development and implementation of state policy in the sphere of penal execution, a Public Council under the State Department for the Execution of Punishments was created in 2004. During this period, only one meeting of the council took place. Attempts by council members to initiate a discussion of current issues of the criminal-executive service’s activities under the new leadership of the State Department did not receive support. The Department’s leadership, despite constant requests from the public, also ignored the Cabinet of Ministers’ resolution (February 2005) on the creation of Public Collegiums under executive bodies. In connection with this, the decisions made by the State Department for the Execution of Punishments remain non-transparent and do not undergo proper expertise or public discussion.

The new composition of the Public Council only began its activities in March 2007, when the question of the possible subordination of the State Department of Ukraine for the Execution of Punishments to the Ministry of Justice of Ukraine became acute (in fulfilment of obligations undertaken by Ukraine back in 1995 upon joining this European organisation). It was then that the Department’s leadership remembered the public, quickly created a Public Council out of people loyal to the agency, and began collecting signatures from public organisations to protect the Department from possible subordination to the Ministry of Justice.

It is regrettable that the Department basely used a number of public organisations, giving them a pre-prepared text of an appeal to the Prime Minister of Ukraine, V. Yanukovych, for signature (January 2007). One reads these appeals and wonders: were the scribblers from the Department not capable of preparing at least a few different versions of the letter? Moreover, the content of these appeals is so legally complex that the average member of the public understood nothing while signing them. Let us provide just a few quotes from such ‘appeals’:

- Historical experience shows that attempts to subordinate the penitentiary system to the bodies of justice did not yield a positive result in 1930, 1953, and 1956 (does the public really know the details of these attempts, which are known only to a few historian-scientists?);

- In recent years, the Department has been developing and legislatively establishing itself as a central executive body that performs special law enforcement and law enforcement functions and possesses paramilitary formations...;

- Directing the Department through the Minister of Justice leads to legal conflicts and ambiguous interpretation of legal norms (this is a somewhat overly complex sentence construction for the public);

- We consider the most optimal solution to be the preservation of the Department’s status for the next 10 years, which will make it possible to conduct a consistent ‘civilianisation’ of personnel and prepare a new generation of qualified staff...;

- The results of the Department’s work have shown that its activity fully corresponds to the Constitution of Ukraine, the legislation of Ukraine, and pan-European norms and standards, and it has become an effective body that properly implements a unified state policy in the sphere of penal execution”;

- We ask you, Most Esteemed Viktor Fedorovych, as a wise leader of the government who cares for the well-being and security of the state, not to allow the adoption of unreasonable decisions regarding a change in the status of the Department (that is, do not allow the strengthening of political and governmental control over its activities, its abuses, lawlessness, and neglect of human rights!).

One could continue, but I am ashamed for that public which understood nothing and naively signed such letters to the Prime Minister of Ukraine. They were simply, primitively ‘used’, which is why I do not indicate the authors of the appeals. But a question for the Department: was it not shameful for its leaders and heads of regional directorates to deceive representatives of the public who, out of charitable motives, are concerned with the problems of the system, the convicts, and released persons?

As we can see, the public, back in September 2006 when this brief was prepared, was demanding cardinal changes in the activities of the state criminal-executive service. But the authorities in 2007 were not interested in positive changes, especially as Mr Koshchynets sees a political subtext and the provocations of political opponents in every inspection and always hides under the protection of the President of Ukraine. And therefore, neither the government of V. Yanukovych nor the Minister of Justice of that government, O. Lavrynovych, brought the question of this service to a proper resolution, despite constant promises.

IV. Materials of the Department’s inspection by the interdepartmental government commission

The final chord could have been the government inspection of the activities of the State Department of Ukraine for the Execution of Punishments, carried out by an interdepartmental commission headed by the first deputy minister of justice of Ukraine from the previous government, V. Bondyk (17–28 September 2007).

Reading this voluminous document, ‘Act on the Results of the Inspection Conducted by the Interdepartmental Commission’, one finds sufficient arguments that attest to both the unfitness of officials for the positions they hold and the abuse of office, manifestations of corruption, financial violations, and the ethical immodesty of the leaders.

Despite the fact that the commission worked according to a static bureaucratic scenario (studying only the documents provided), without holding meetings with the staff of penal institutions or conducting even anonymous surveys, without meetings with convicts—especially those in institutions where recent high-profile events took place and where human rights were brutally violated—and without communicating with human rights organisations and independent experts, the information obtained will be of interest to the general public.

Let us provide just some excerpts from the Act.

1. The commission established that the Department’s leadership worked for 1 year and 4 months without approved functional duties, which essentially made it impossible during that time to hold the leaders accountable for failures in work, as they were not effectively responsible for anything.

2. It was noted that work on bringing the Department’s normative-legal acts into compliance with current legislation is being conducted improperly (read: the law is on its own, and our normative acts are on their own).

3. Meetings of the Department’s collegium have a bias towards the preferential consideration of problems of an industrial and economic nature (and where is the development of a concept and a roadmap for reform, standard-setting activity, analysis of compliance with the rule of law and the rights of convicts, work with personnel, development of science and education—things the leaders speak about so often in their public speeches, but do not discuss at their meetings and for which they develop no measures).

4. The Main Control and Auditing Department, which conducted an inspection of the activities of economic entities, discovered financial violations in the II quarter of 2007 alone that led to losses amounting to 7.9 million hryvnias (among them, expenditures with violations of legislation, non-targeted spending). Also discovered were violations of procurement procedures totalling 21.1 million hryvnias.

Since we have touched upon financial violations, for which in civilised countries leaders of all levels would immediately be dismissed, here I would like to present the conclusions of the inspection carried out by the Tender Chamber.

Forgive me, reader, for the perhaps excessive detail that will now be provided to you, but it is worth being made public:

BRIEFING

on facts of violation by the State Department of Ukraine for the Execution of Punishments and its subordinate correctional facilities of the requirements of the Law of Ukraine ‘On the Procurement of Goods, Works, and Services for State Funds’

(with some expert comments)

Through research into state procurements conducted by the State Department of Ukraine for the Execution of Punishments and its subordinate correctional facilities, the Tender Chamber of Ukraine has established gross violations of the requirements of current legislation amounting to a total of 217.98 million hryvnias.

It should be noted that the State Department of Ukraine for the Execution of Punishments and its subordinate correctional facilities purchase food products in huge quantities.

However, as materials from the research testify, almost 90% of food procurement procedures were conducted while lobbying the interests of certain commercial structures and granting them the right to manage state funds in significant volumes.

Thus, the State Department of Ukraine for the Execution of Punishments, when conducting a procurement procedure for fish (sprat, tyulka, hamsa, goby—frozen and salted) with an expected value of 4,480.0 thousand UAH, provided for the selection as winner not only of the participant whose tender proposal was recognised as the best upon evaluation and accepted, but also of other participants based on subsequent maximum point totals.

Furthermore, the evaluation methodology provides for the simultaneous assessment of all tender proposals, rather than the assessment of a separate lot, which constitutes 350 tonnes. That is, on the one hand, the Customer gave participants the opportunity to submit tender proposals for separate parts of the subject of procurement, and on the other, the evaluation methodology does not provide for the assessment of separate parts of the subject of procurement.

Consequently, the Customer, already when drafting the tender documentation, provided for an objective and biased methodology for assessing tender proposals.

And, as a result, the Customer carried out a purchase of fish (sprat, tyulka, hamsa, goby—frozen and salted) with the superfluous use of state funds totalling 1,330.0 thousand hryvnias.

Similarly, the Department, when carrying out the procurement of cereals with an expected value of 2,400.0 thousand UAH, and when carrying out the procurement of fish (sardine, sardinella, horse mackerel, mackerel—frozen), actually spent 2,880.0 thousand hryvnias.

Such actions by the Department’s tender committee testify to the embezzlement of state funds as a result of the abuse of office by officials, which contain signs of socially dangerous acts envisaged by Part 5 of Article 191 of the Criminal Code of Ukraine.

Research conducted by the Tender Chamber of Ukraine in the sphere of state procurement shows that one of the reasons for the damages caused to the state during the conduct of procurements is that, in violation of its functions, the State Department of Ukraine for the Execution of Punishments and its subordinate correctional facilities do not conduct preliminary study and analysis of the market and the prices within it.

As a consequence, the absence of such information in every second case of tenders conducted leads to the acceptance of price proposals from participants at the ‘lowest price’, which significantly exceeds the average market price active on the market at the time of the tender.

Thus, the Department, when conducting a procurement procedure for sugar (6 lots) with an expected value of 6,300.0 thousand UAH, as a result of making the purchase at inflated prices, caused damages to the state in the amount of 1,680.0 thousand hryvnias.

Also, during the conduct by Dnipropetrovsk Correctional Colony No. 89 of a procurement of products with an expected value of 390.0 thousand UAH, as a result of making the purchase at inflated prices, damages were caused to the state in the amount of 17.1 thousand hryvnias.

Another case: when conducting a procurement procedure for cereals in assortment by the Department with an expected value of 3,200.0 thousand UAH, the Customer carried out a purchase of cereals with the superfluous use of state funds totalling 1,401.4 thousand hryvnias. Thus, through a comparative analysis of prices from the previous procurement procedure for cereal, carried out by the Customer in the II quarter of 2007, with the prices of this procurement, an increase in prices of almost 100% was established, at a time when during the III quarter of 2007 prices for cereal in Ukraine increased on average by 20%.

Another quite common phenomenon of corrupt activity by the State Department of Ukraine for the Execution of Punishments and its subordinate correctional facilities is the determination of the tender winner at their own discretion, regardless of the norms and provisions of the requirements of current legislation.

During 2007, during the conduct of procurement procedures by the Department and its subordinate correctional facilities, an excess of the contract sum over the expected value was established totalling 1,741.95 thousand hryvnias.

In particular, when conducting the procurement of fish (sprat, tyulka, hamsa, goby—frozen and salted) with an expected value of 3,840.0 thousand UAH, a purchase was carried out with the superfluous use of funds in the amount of 370.0 thousand hryvnias.

During the conduct by Odesa Correctional Colony No. 14 of the Directorate of the State Department of Ukraine for the Execution of Punishments in the Odesa region of a procurement procedure for fresh vegetables with an expected value of 180.0 thousand UAH, it was established that the winner of the tender was the Enterprise of Odesa Correctional Colony No. 14 of the Directorate of the State Department of Ukraine for the Execution of Punishments in the Odesa region.

The Enterprise of Odesa Correctional Colony No. 14 is not a producer of fresh vegetables in the volumes they sell, but is in fact an intermediary.

At the same time, the main type of economic activity of the Enterprise of Odesa Correctional Colony No. 14 is the manufacture of metal structures.

Similarly, when conducting a ‘tender’ for the procurement of wheat flour of the second grade—130 tonnes, cereals in assortment—30 tonnes, with an expected value of 183.0 thousand hryvnias by Zamkova Correctional Colony No. 58 of the Directorate of the State Department of Ukraine for the Execution of Punishments in the Khmelnytskyi region, the winner of the ‘tender’ was the enterprise of this institution. The main type of activity of this enterprise is the manufacture of carpentry and joinery products!

At the same time, new types of manipulations and manoeuvring in the sphere of state procurement are increasingly being ‘mastered’.

In particular, business entities that are related persons are systematically allowed to participate in tenders, which leads to the mass conduct of fictitious open tender procedures with price reductions as a result of agreements on determining tender proposal prices, the non-application of price-reduction steps, and other conditions.

Thus, the State Enterprise ‘Departamentservis’ when carrying out a procurement of wheat flour in assortment with an expected value of 1,300.0 thousand UAH did not reject and allowed to be assessed tender proposals from participants between whom a close connection can be traced, namely: the founder of the participant LLC ‘TA KYI TRAVEL’ is Maryna Mykhailivna Melnyk and Serhiy Ihorovych Melnyk; the founder of another participant—PE ‘Successful M’—is Maryna Mykhailivna Melnyk and Maryna Volodymyrivna Melnyk.

Also, Raykivtsi Correctional Colony No. 78 of the Directorate of the State Department of Ukraine for the Execution of Punishments in the Khmelnytskyi region, when performing a procurement procedure for potatoes with an expected value of 217.0 thousand UAH, the Customer did not reject and allowed to be assessed tender proposals from participants between whom a close connection can be traced, namely:

1. The founder of the ‘Mriya’ farm is Ivan Mykolaiovych Huta, Klavdiia Fedorivna Huta;

  The head of the ‘Mriya’ farm is Mykola Ivanovych Huta, Mariia Mykhailivna Kozak;

2. The founder of the LLC ‘Trading House ASKO’ is Andrii Ivanovych Huta, Mykola Ivanovych Huta;

  The head of the LLC ‘Trading House ASKO’ is Andrii Ivanovych Huta, Oksana Bohdanivna Yavorska;

3. The founder of the LLC ‘Novagris’ is Andrii Ivanovych Huta, Mykola Ivanovych Huta;

  The head of the LLC ‘Novagris’ is Mykola Ivanovych Huta, Liudmyla Volodymyrivna Holubovych.

Of course, creating one’s own ‘small’ circle among tender participants, so to speak, one’s own trusted participants, significantly facilitates the process of additional earnings for certain officials.

The consequence of such facts is the ineffective and irrational spending of state funds, resulting in the creation of a phenomenon such as the ‘kickback’, and, accordingly, the massive transfer—20–30 per cent—of monetary funds to intermediary structures.

The officials of the Directorate of the State Department of Ukraine for the Execution of Punishments in the Kherson region did not stand aside either, as they also did not miss the opportunity to increase their own wealth at the expense of the state.

Thus, when conducting by this Directorate a procurement procedure for fresh and frozen meat with an expected value of 2,080.0 thousand UAH, a purchase was carried out of 10 tonnes of pork without the application of procedures envisaged by current legislation, as a result of which state funds were superfluously used in a total amount of 209.0 thousand hryvnias.

Thus, the above testifies that the leadership of the Directorate of the State Department of Ukraine for the Execution of Punishments in the Kherson region, which has been entrusted by the state with the management of significant flows of financial resources, is attempting by all means to lobby the interests of certain commercial structures in order to grant these commercial structures the right to manage huge sums of state funds, including budgetary funds, without conducting the procurement procedures envisaged by the Law, that is, without conducting a tender.

Not the last scheme of manoeuvring with legislation in the sphere of state procurement is the application by the customer of a procurement procedure from a single participant in the presence of corresponding competition for them on the market.

Here, an important place is also held by the creation by the customers themselves of an ‘artificial monopoly among tender participants’ that are already natural monopolies. This concerns the conduct of procurement procedures from a single participant in the presence of a wide competitive circle. Almost every second such procedure was conducted in violation of current legislation, that is, it has no corresponding justification or grounds regarding the procurement of goods, works, and services from a single participant, especially those goods, works, and services for which a constant market exists. At the same time, in most cases, the customer proposes a pre-selected participant who is in ‘close’ or ‘direct’ relations with them, which testifies to the baseless application of such a procurement procedure, which as a rule spawns corruption and leads to especially significant expenditures of state funds.

That is, the application of procurement procedures from a single participant not only does not contribute to ensuring competition (in the case of the actual absence of grounds for the application of this procedure!!), but also spreads such a phenomenon as corruption, since the determination of the size of the price for the performance of works occurs through negotiations with a sole participant.

Unfortunately, it can be stated that sometimes the desire to choose a pre-determined winner exceeds the real state of things.

Thus, the State Department of Ukraine for the Execution of Punishments, when purchasing disinfecting agents with an expected value of 4,529.9 thousand UAH, applied the procedure of procurement from a single participant—CJSC ‘Ukrainian Scientific-Production Centre for Problems of Disinfection’.

In particular, in Ukraine, at least 30 enterprises are engaged in the production of disinfecting agents, among them JSC ‘Vinnytsia Oil and Fat Combine’ (Vinnytsia), CJSC ‘Vinnytsiapobutkhim’ (Vinnytsia), SE ‘Kyiv Soap Factory’ (Kyiv), CJSC ‘Kyiv Experimental Factory of Household Chemicals’ (Kyiv), CJSC ‘Soap Factory’ (Kharkiv), JSC ‘Household Chemistry’ (Donetsk).

The stated fact testifies that through its actions, the tender committee of the State Department of Ukraine for the Execution of Punishments contributes to the limitation of the competitive environment in the sphere of state procurement and the absence of transparency in the procurement procedure, given that such a subject of procurement as disinfectant agents has a wide, permanently active market.

The examples cited quite vividly illustrate corruption during the conduct of state procurements, the embezzlement of state funds as a result of the abuse of office by officials, which contain signs of socially dangerous acts envisaged by Part 5 of Article 191 of the Criminal Code of Ukraine, and the enrichment of certain officials of various levels. Yet all the leaders remain in their positions, and for some reason, no one has been held to strict account for the discovered abuses!

And who in Ukraine is engaged in investigating corruption among state bodies? This is known to everyone. So perhaps the competent authorities will still conduct their own separate investigation and give a principled legal assessment to such disgraceful phenomena in the State Criminal-Executive Service?

Especially since the President of Ukraine, in all three years of his tenure, has emphasised in almost every one of his speeches—especially before government bodies, law enforcement, and judicial authorities—the necessity of an offensive fight against corruption and the strict punishment of corrupt officials. But if the President’s words continue to sound merely as a call that is not supported by any concrete actions, then these words will remain empty declarations, and corruption will continue to flourish in the country. And I—I hope, along with society—very much do not want the President of Ukraine to continue to ‘patronise’ his party comrade, whom he so recklessly appointed to the position of Head of the Department without proper consideration and without consulting the public.

Considering the above from the inspection act by the Tender Chamber, it becomes clear that the main requirement—ensuring decent conditions of detention in penal institutions and pre-trial detention centres—has not been actively and purposefully fulfilled in recent times, and budget funds are sometimes spent on purposes other than intended. How does this affect the convicts themselves?

For illustration, we present a letter from the head of one of the correctional institutions in eastern Ukraine, dated 31 January 2008, who appeals to charitable foundations with a tearful request for help (out of ethical considerations, we will not state the surname of this head, knowing of possible repressions from the Department’s leadership for the leak of information, but we can demonstrate the original letter with the institution’s seal to interested persons). The text of the letter is presented with omissions in the language of the original:

“Администрация исправительной колонии №___ обращается к Вам за помощью. За время существования колонии здания, сооружения, парк технологического оборудования (как производственного, так и пищеварочного) морально и физически устарел. Денег на приобретение нового оборудования, ремонта обветшалых помещений у колонии нет.

Производственное оборудование имеет 100% износ и в большинстве своем не подлежит ремонту. Продукцию предприятие фактически не выпускает, и за счет хозяйственной деятельности организовать полноценное питание осужденных не представляется возможным.

В нынешнее время в колонии сложилась крайне сложная ситуация в части обеспечения осужденных продуктами питания, вещевым и постельным имуществом, потребность в которых не соизмерима с финансовыми возможностями колонии.

Учитывая вышесказанное, администрация колонии №___ просит рассмотреть возможность оказания благотворительной помощи, если можно – на постоянной основе, в виде продуктов питания (масло-жировая группа, мясо и мясопродукты), вещевое имущество (обувь, костюм ч/б, ватная куртка), постельных принадлежностей или перечисления денежных средств на расчетный счет колонии.

Искренне надеемся на Ваше понимание, заранее Вам благодарны”.

This is the situation in some places regarding the feeding of convicts. And this is despite the fact that the number of convicts is decreasing every year by almost 10 thousand (in 2001 the total number of prisoners and convicts was 222 thousand people, and as of 1 January 2008—149.7 thousand people, including prisoners held in pre-trial detention centres), while expenditures for the maintenance of convicts grow annually by 20–30% (although they are still clearly insufficient to fully satisfy needs). For the time being, the state cannot finance all the needs of the criminal-executive system one hundred per cent. But the question is not about that. It is about the non-targeted use of budget funds, about their squandering, about abuses. So what are we to answer to this head of an institution, and along with him to the personnel of the State Criminal-Executive Service and almost 150 thousand convicts and prisoners, their relatives, human rights activists, the public, and journalists? Tell the truth about non-transparent tenders, about ‘kickbacks’, about lobbying the interests of certain commercial structures for personal gain, about corruption, abuse, and deception? Or will a principled state assessment still be given to this phenomenon?

But let us return to the conclusions of the government commission.

5. The commission never analysed the high turnover of personnel, why staff of penal institutions are increasingly quitting their jobs, and why 3,827 staff positions remain unfilled.

6. The commission notes that the leadership of the State Department for the Execution of Punishments and its regional directorates ignore the requirements of the law regarding the creation of proper material and living conditions of detention, medical-sanitary provision, and the feeding of convicts, which leads to the indignation of persons serving such sentences, their relatives, and national and international human rights institutions. Such violations prompted convicts in the Balakliya correctional centre of the Kharkiv region in October 2006 and January 2007 to openly appeal for the protection of their rights to central media outlets regarding inhumane conditions of detention.

Inadequate conditions of serving sentences were also the reason for a group refusal to accept food by convicts in the Iziaslav correctional colony of the Khmelnytskyi region in January of the current year.

7. The unlawfulness of the Department’s actions, which consisted of refusing to provide answers to requests from human rights organisations, was recognised through court proceedings following lawsuits by the public organisation ‘Donetsk Memorial’ against the heads of the Department’s directorates in the Sumy, Kyiv, Vinnytsia, Mykolaiv, and Chernihiv regions. The commission admits that the absence of timely and truthful answers to requests makes it impossible to obtain objective information about the activities of the system’s bodies and institutions, particularly in the sphere of compliance with human rights, especially regarding extraordinary events, and paralyses timely and adequate responses to facts of human rights violations.

We will not overload the reader. Let us look at the conclusions and proposals of the government commission. Point 16 of the proposals sounds as follows: “To consider the question of the application of measures of disciplinary influence, and possibly to consider proposals regarding the dismissal from the position of the Head of the State Department of Ukraine for the Execution of Punishments, V. V. Koshchynets.” However, after the September parliamentary elections, the government of V. Yanukovych was not concerned with V. Koshchynets.

But today, this proposal is not being removed from the agenda; it is more than urgent. At the very least, the public is not going to put up with such a situation.

V. The ethics of behaviour of the Department’s leadership

In the draft Concept for Reforming the State Criminal-Executive Service, which is currently awaiting signature at the President of Ukraine, it is defined (among other points) that “the functioning of the service is based on the observance of the norms of the Constitution and laws of Ukraine, international law, and European ethics...”

Let us focus on the examination of precisely the aspirations towards following the norms of “European ethics”.

Can it be considered ethical when the head of a Departmental Directorate in one of the regions (where, incidentally, representatives of the American organisation of former police officers ‘Pointman’ conducted training for personnel on the ethics of communication between superiors and subordinates!?) slaps the head of an institution in the presence of subordinates and convicts?

Can it be considered ethical when, after the appointment of a head of a Departmental Directorate in one of the regions (a police colonel transferred from another region), he is provided with an apartment that had been designated for the deputy of this leader and which had been expected by him for a long time?

Is it ethical for one of the leaders of the Department to curate that region and travel on official business trips during holidays to the city where he owns an apartment?

In this regard, we will cite in full the conclusion of the interdepartmental government commission that inspected the Department’s activities in September 2007:

“Upon checking the information regarding the abuse of office by the Deputy Head of the Department (concerning business trips to the Zaporizhzhia region), it was established that during 2006 and the 5.5 months of the current year, the Deputy Head carried out 5 official business trips to the Zaporizhzhia region.

Besides this, information was confirmed that the specified Deputy did indeed travel on business trips to the Zaporizhzhia region from 06.04.07 to 10.04.07 and from 27.04.07 to 02.05.07 (a total of 11 days) (during the holidays), on which 2,149 hryvnias were spent. In comparison, in 2006, when the relevant Deputy was officially present in the Zaporizhzhia region for 15 days, 1,142 hryvnias were spent.

Considering that the level of inflation from the beginning of 2006 to June 2007 amounted to 11%, and also that the mentioned Deputy owns an apartment in Zaporizhzhia, the increase in the sums for business trips to the Zaporizhzhia region by almost twice, and by more than three times across Ukraine as a whole, causes surprise.

Also, it is necessary to note the effectiveness of the business trips precisely to the specified region, since the state of discipline among convicts deprived of liberty (the direction curated by the specified Deputy) deteriorated in 2006 by 4% (calculated per 1,000 convicts), and the number of malicious violations increased by 15.4%.”

I would add to this conclusion: convicts of the institutions in the Zaporizhzhia region have the highest debt among other regions of Ukraine for the compensation of damages caused by committed crimes—a staggering 28 million hryvnias as of 2007. And for some reason, these business trips in no way contribute to the reduction of this debt to the state and the victims of the crime.

By the way: these trips were also financed by you and me, as taxpayers.

And here is the Department’s explanation: “...the expenses reimbursed above the established norm are not excessively spent. Furthermore, the question of the correctness of the execution of supporting documents and the legality of settlements for business trip expenses were checked by specialists of the Main Control and Auditing Department of Ukraine during the revision of the Department’s financial-economic activity. In the revision act of 22.06.2007 for the period from 01 January 2006 to 31 March 2007, it is indicated that no violations were discovered during the check of the specified question.” (Gentlemen, whoever prepared this exculpatory response: you should have at least looked at the dates; we are talking first and foremost about the trips in April 2007!)

We are not currently asking who to believe more, the conclusion of the government commission or the Control and Auditing Department, as we are talking about compliance with ethical norms. Well, an official cannot curate a region where he worked for many years and where he has relatives and an apartment. And furthermore, to go on official business trips precisely during the holidays! Humanly, he could perhaps be understood, but then travel at your own expense, and not at the expense of the budget (that is, the taxpayers).

In the entire civilised world, this would be viewed as a conflict of interest, as a violation of ethical norms, and as an abuse of office. And this official somewhere in Europe, immediately after such a fact was made public, would submit his resignation. But we are not in Europe... And, probably, with such behaviour by officials, we will not be there soon. Then perhaps we should not be giving the President a document to sign where our aspiration towards the norms of European ethics is affirmed?

It is unethical for heads of regional Directorates to engage in extortions from subordinate employees for the sake of receiving ‘dear leaders’ from the centre with more than just bread and salt.

It is unethical for a Deputy Head to go on a business trip to the Autonomous Republic of Crimea to check the state of affairs, but to live not in Simferopol, where the Directorate of the Department in the AR of Crimea, the pre-trial detention centre, and the correctional institution (that is, the objects of the inspection) are located, but in the ‘Yalta’ hotel on the southern coast of the sea, to use services that were paid for with the money of the system’s employees, and every day at the expense of budgetary funds (that is, our taxes) to travel in the morning to Simferopol on business, and in the evening to Yalta. For some reason, the commission did not check this fact.

But let us read further in the act of the government inspection of the Department:

“The inspection also established that the Department’s leadership constantly violates the requirements of the fourth paragraph of clause 2 of the Cabinet of Ministers of Ukraine resolution of 23 April 1999 No. 663, which approves the norms for reimbursement of expenses for business trips abroad, when expenses for food, the cost of which is included in the invoices for payment of accommodation in hotels or in travel documents, are paid by the business traveller at the expense of per diems (trips that were carried out at the expense of the Council of Europe). This led to illegal payments for foreign business trips for this year from the state budget in the amount of 1,195 hryvnias.” And to this, the Department gives the explanation that in all cases they complied with the requirements of the specified Cabinet of Ministers of Ukraine resolution.

Of course, it would be appropriate for a government commission (probably the next one) to check the effectiveness of official trips abroad by the Department’s leadership. There have been several dozen such trips over the last three years. So how many times did the Head of the Department and his deputies travel? The terms of reference for them are approved each time by the Ministry of Foreign Affairs, and information about the results of the trip and the possibility of implementing the obtained foreign experience in penitentiary activity should be submitted to the Government, and real measures should be proposed and then implemented.

But somehow, no serious initiatives and their implementation come to mind (I am not taking, for example, the creation of a model institution, as this idea was proposed and financed by the Swiss Confederation Government back in 1997; or the idea of creating a probation service, about which the Department’s leadership speaks so often: it also began to be implemented from April 1997 with the assistance of the London Probation Service, and practical experiments began back in 2002, still under the previous leadership of the agency; the action plan which was proposed by scientists to the Department’s leadership back in February 2007 has still not been approved, because, as the head of the agency likes to say sometimes, ‘the time is not right’). But why, then, did you study the experience of foreign penitentiary systems so much, wasting the money of foreign taxpayers, and also, for our extracted taxes, you were credited with a salary for the time of the trip? So if the government is not up to controlling the effectiveness of foreign trips, then the public has the right to demand accountability, since officials were appointed by state bodies authorised to do so in the name of the people for the purpose of your serving the people and their interests, and not your own interests. This is also a question of ethics.

The inefficiency and unethical nature of foreign trips are evidenced by at least such a fact. In 2007, in places of deprivation of liberty, 4,702 HIV-infected convicts were on the dispensary register, of which 173 were suffering from AIDS, 7.6 thousand were suffering from active forms of tuberculosis, and a large number were suffering from drug addiction. In 2005, 263 HIV-infected persons died, and in 2006, 130 such persons died.

With the aim of assisting Ukraine’s prison system in introducing new approaches to reducing harm from drug use and preventing the spread of HIV infection, the Canadian HIV/AIDS Legal Network proposed cooperation to the Department, organised visits by a group of leaders (headed by the Head of the Department) and specialists of the system to Spain and Canada to familiarise themselves with the best experience of preventing drug addiction in prisons, and ensured the participation of Ukrainian specialists in several international conferences on these problems.

In March 2006, a memorandum on cooperation was signed, and at the beginning of 2007, the Department approved an action plan and signed up to implement programmes to reduce harm from drug use. And after that, it ceased any activity under the project, which is financed by the Canadian government... As far as we know, both the World Bank and the International HIV/AIDS Alliance in Ukraine spent a lot of money on supporting foreign trips and conducting expert examinations, yet the Department’s active participation in the use of international aid in the fight against infectious phenomena is not felt.

This is not only unethical in relation to foreign partners and their aid, but it is also a shame for Ukraine. And meanwhile, the infection is spreading and convicts are dying: 736 people died in 2006, most of them from tuberculosis and AIDS.

It is unethical, in an appeal to the government of V. Yanukovych in March 2007 under the title ‘Justification of the Inexpediency of Changing the Status of the Department...’, signed by all the heads of the Department and its regional directorates, to give themselves a praiseworthy assessment:

“The results of the Department’s work have shown that its activity fully corresponds to the Constitution of Ukraine, the legislation of Ukraine, and pan-European norms and standards, and it has become an effective body that properly implements a unified state policy in the sphere of penal execution.”

The attentive reader may notice that the aforementioned point is identical (word for word!) to the conclusion supposedly reached by certain non-governmental organisations in their appeals to the previous government of Ukraine.

We consider it unethical for the Department to use certain non-governmental organisations to appeal to the Government of Ukraine in order to preserve the special status of a department whose leadership has compromised itself through many unworthy actions.

Indeed, in December 2007, just in time for Human Rights Day, the Head of the Department was nominated and, based on the assessment of the Ukrainian Helsinki Human Rights Union's competition committee, became the winner of the "Thistle of the Year" award for the second consecutive year for inaction in cases of human rights violations (a total of five Ukrainian departments and officials became "winners," with representatives of the Department "winning" two prize places, and the disgraceful "Thistle of the Year" award was sent to their place of work).

Reason and justification for the awarding of this "title":

Regarding the use of special forces to beat prisoners, the concealment of information, and the failure to respond to information requests from human rights organisations. Ignoring and restricting the activities of non-governmental organisations.

Throughout the year, the Head of the State Department of Ukraine for the Execution of Punishments, V. Koshchynets (hereinafter the Head of the Department), committed a series of actions as the head of the agency that contributed to human rights violations within the system and significantly influenced the level of human rights observance. Specifically, these actions included:

1. The Head of the Department committed actions that led to the deployment of special forces and the brutal beating of prisoners in Iziaslav Penal Colony No. 31. The situation that had developed in the colony with prisoner protests did not require such a cruel and inadequate reaction. Subsequently, the Head of the Department never once questioned the justification of the actions of his subordinates or the special forces, which effectively encourages the human rights violations that took place there.

2. The Head of the Department failed to take any measures to provide timely and complete responses to requests from the non-governmental organisation "Donetsk Memorial" regarding the events in the Iziaslav colony. These requests were either not answered at all or were answered only partially, which meant that more or less complete information was only obtained as a result of correspondence from January to September 2007. Furthermore, false information was provided, specifically regarding the absence of individuals who sustained bodily injuries during the deployment of special forces into the colony. The failure to receive information on time prevented the implementation of measures that could have improved the situation regarding human rights observance.

3. The Head of the Department issued instructions that directly violate the law, specifically the instruction of 30 May 2007, regarding visits to penal institutions by non-governmental organisations only on weekends. This instruction was recognised as illegal by the Prosecutor General's Office, but local officials in regions such as Volyn continue to refer to it, prohibiting visits to institutions on working days even for members of monitoring commissions, who are required to exercise public oversight of the institutions.

4. Throughout the year, the Head of the Department failed to take measures to ensure that his subordinates, both in the central apparatus of the agency and in territorial bodies, comply with the requirements of the Law of Ukraine "On Information". The instruction issued on 23 March 2007 regarding compliance with the law is not being fulfilled, and those who violate it do not face any responsibility for their illegal actions; instead, they continue to refuse to provide information concerning human rights issues, even in cases where there is a court decision regarding such violations.

5. The Head of the Department repeatedly violated the rights of convicted persons by reporting details of the crimes they committed in the media without the permission of the convicts themselves, which is effectively an interference in the private lives of these individuals and is in no way justified by objective circumstances.

6. The Head of the Department in no way reacted to reports about the denial of access to institutions for non-governmental organisations by the heads of local agency bodies.

7. The Head of the Department ignores appeals and proposals from non-governmental organisations regarding the improvement of the human rights situation.

8. The Head of the Department exhibits total inaction when the staff of his agency refuse to allow research aimed at improving the level of human rights observance to be conducted in the Department's institutions.

Facts confirming this violation in chronological order:

1. The fact of the deployment of special forces to Iziaslav Penal Colony No. 31.

2. A series of requests from "Donetsk Memorial" and partial responses to them during January–September 2007.

3. A letter from the Prosecutor General's Office dated 22 August 2007 regarding the recognition of the instruction as illegal and a new instruction dated 10 September, which cancels the previous one. Copies of instructions to colony administrations and agency bodies in the Volyn region.

4. The decision of the Budionivskyi Court of Donetsk regarding violations of the requirements of the Law of Ukraine "On Information" by the heads of the Sumy, Kyiv, Vinnytsia, Mykolaiv, and Chernihiv regions and the complete lack of any reaction from the agency and, in particular, its Head.

5. Television appearances following regular emergency events.

6. An open letter from "Donetsk Memorial" dated 13 August 2007, regarding the abuses by Mr Stefanovsky and the lack of any reaction to it.

7. Letters from "Donetsk Memorial" regarding annual reports on the observance of prisoners' rights with a proposal to consider the findings and recommendations and provide a response on their substance. The absence of responses to these letters.

And, in general, it is unethical to praise oneself and one's achievements, to boast of a successful path toward European standards (which does not correspond to reality at all), to mislead government bodies, the public, and the international community with one's declarations, speeches, and publications, while remaining un-self-critical, immodest, and irresponsible for the abuses and collapse within the system.

I hope that the facts presented in this material confirm this, as do the publications of many human rights organisations and their appeals to the Government of Ukraine.

VI. Expert assessment of the Concept of Reforming the State Penitentiary Service and the Comprehensive Target Programme for Reforming the Service

In the middle of 2007, in order to avoid constant criticism for the lack of a vision for the development of the State Penitentiary Service, the Department attempted to develop a Concept for Reforming the Service and a Comprehensive Target Programme for Reform through a Commission created by the decree of the President of Ukraine dated 21 May 2007 (Decree No. 110/2007). The draft documents were developed by a group of 18 appointed persons, of whom only one person, the former head of the Department, understands the state of affairs in the system well. The group worked without proper openness, publicity, the involvement of competent experts, or public discussion of the materials developed. When the prepared drafts of these two documents were already on the desk of the Head of the Presidential Secretariat, it was only through the efforts of several quick reviews by penitentiary scientists and human rights defenders that their approval by the President of Ukraine was prevented. But today, such attempts are being made again, which is why I am submitting one of the expert opinions to argue for the impossibility of their adoption.

1. In essence, both documents were developed by representatives of the State Department of Ukraine for the Execution of Punishments and some invited experts (mainly scientists from the Kyiv National University of Internal Affairs), who are not sufficiently qualified or knowledgeable (for the development of such an important conceptual document) to be specialists on all the problems of reforming the State Penitentiary Service.

2. As a result of this selection of experts to prepare these two documents, the opinions and views of the "customer" (i.e., the State Penitentiary Service and the State Department for the Execution of Punishments) prevail, rather than the needs for a radical reform of the service, which should have been generated by a wide circle of unbiased experts and specialists and should reflect the real and justified needs of society in bringing the service's activities into line with the modern socio-economic development of the country, Ukraine's obligations to the Council of Europe, generally recognised international standards, and the views of scientists in the field of penitentiary law.

The situation was similar with the preparation of the Penitentiary Code in 2003–2004, when specialists of the State Department of Ukraine for the Execution of Punishments developed the code for "themselves," without involving the scientific community and independent experts in the discussion and evaluation of the code. That is why the code approved by the Verkhovna Rada causes many complaints from scientists and practitioners of the State Penitentiary Service.

3. The weakest part of the Concept text is the first chapter, "Factors that determine the necessity of reforming the State Penitentiary Service." In fact, these factors are never revealed, because the authors of the Concept did not conduct a critical analysis of the activities of the State Penitentiary Service and the State Department as a central body of executive power over the last years; they did not analyse how the previous Concept for Reforming the Penitentiary System (adopted by the Cabinet of Ministers of Ukraine back in 1991) was implemented, how the previous and current State Programmes for Reforming the Penitentiary System (adopted by the Cabinet of Ministers of Ukraine in 2004 and 2006) were implemented, or what assessment Council of Europe experts gave to this reform and the real state of the State Penitentiary Service during the monitoring of Ukraine's fulfilment of its obligations in reforming the penitentiary system and the hearing of this issue at the meeting of the Legal Committee of the Council of Europe in March 2007, where the Council of Europe's concern regarding the slow steps of the State Penitentiary Service reform and constant human rights violations in places of imprisonment was expressed.

4. In essence, the Concept does not reflect the actual state of the State Penitentiary Service, nor does it analyse the main reasons for the negative state (especially in the field of human rights observance) and the factors that hinder the implementation of the reform. It is claimed (page 1) that the necessity of reforming the State Penitentiary Service is determined by unfavourable social circumstances in Ukraine (really?), yet not a word is said about the subjective factors that the State Penitentiary Service should have seen and overcome (rigid centralisation of service management, poor selection and training of personnel, the appointment of not always competent but loyal people to regional leadership positions, the lack of elementary management skills among leaders and an emphasis only on orders and demands on subordinates, manifestations of corruption among all levels of staff, openly shocking social injustice in the remuneration of lower-level and managerial-level officials, the lack of a scientific base and a reluctance to involve young scientists in researching urgent reform problems, the half-heartedness of actions (not a single reasonable or useful idea was ever brought to completion), the lack of transparency in the activities of the State Penitentiary Service, and the public's concern over sometimes blatant violations of the rights of convicted persons, which are constantly noted by media representatives and human rights organisations).

5. The text of the Concept does not explain what prevented the State Penitentiary Service, since the adoption of the law on the State Penitentiary Service, from carrying out regulatory control over the implementation of the punishment of imprisonment. In this section, it would have been worth approaching the portrayal of the level of infectious diseases among convicts more seriously, showing the state of medical, sanitary, and municipal services for convicts, the problems in the employment of convicts, preparation for release, the quality composition of personnel, staff turnover, dissatisfaction with work, etc. Nothing of this was done (at least, briefly).

Thus, the lack of an objective, independent, and impartial analysis of the state of affairs in the State Penitentiary Service did not make it possible to determine the primary urgent needs for reforming the service. For this, it was simply necessary to answer elementary questions: where is the system now; what has been done during the years of independence; where are we going; with what realistic steps and actions can we achieve the set goal? In other words, using one of the favourite words of the President of Ukraine, to develop a roadmap for the reform.

6. Furthermore, all the tasks defined in the text of the Concept were known previously, but serious and thoughtful steps for their implementation have not been taken to this day. And this is not explained in any way.

7. The main measures are not comprehensive. Specifically, it has never been defined what place the State Penitentiary Service should occupy in the system of state administration. According to the draft Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding the Management of the System of Bodies and Institutions for the Execution of Punishments," this service should be subordinated to the Ministry of Justice. In the Concept of Ukraine in the field of criminal justice (adopted by the National Commission for Strengthening Democracy and the Rule of Law), the place of the State Penitentiary Service is also in the structure of the Ministry of Justice. However, these issues are bypassed in the Concept.

Conclusion regarding the Concept:

The prepared Concept is not comprehensive, does not contain a critical analysis of the state of affairs in the State Penitentiary Service, a clear definition of urgent reform needs, and accordingly all tasks, measures, and means for its implementation; it did not undergo public expert review and discussion with the participation of representatives of the Ministry of Justice, scientists specialising in penitentiary law, public administration, etc.

The Concept, like the Reform Programme, was developed to suit the own needs and vision of the State Penitentiary Service and does not involve the government and other departments (the Ministry of Health, the Ministry of Education, the Ministry of Social Policy, the Ministry of Justice) in its implementation. Therefore, these documents cannot be submitted for consideration, let alone for approval, but require thorough revision with the participation of unbiased and competent specialists and representatives of those ministries and departments that should be involved in the radical reform of the State Penitentiary Service, as well as public discussion.

VII. Conclusions from the material presented

1. The radical reform of the State Penitentiary Service is being hampered first of all by the professional incompetence of the top officials of the State Department, the poor selection of some regional-level management personnel, and the absence of proper management at all levels. The management of the service is rigidly centralised and relies primarily on the orders of the leaders, which completely subordinates the management staff of regional directorates and institutions and does not contribute to the development of local initiative.

2. The regulatory documents adopted by the Department for the Execution of Punishments do not undergo proper expert review and discussion; the absence of high-quality legal personnel leads to the production of documents and decisions that are ill-considered and often contradict current legislation and international standards on human rights.

3. Over the last years, the State Department, despite the provision of necessary scientific assistance, has not managed to develop and approve a scientifically grounded concept or strategy for the prospective development of the State Penitentiary Service, as required by relevant government documents. This is precisely why the leadership of this executive body does not have a clear vision of a roadmap for reforming the agency; there is a lack of planning and consistency in actions, all measures are of a temporary nature, and the activity has become overly bureaucratised with a large number of plans and general reports that prevent focusing on the key issues of the reform.

Often, the actions of the leadership are aimed at extinguishing conflicts, incidents, and eliminating the consequences of negligence and incompetence, instead of systematic activity to prevent negative phenomena (corruption, abuse of office, misuse of budget funds, brutal human rights violations, etc.).

4. The scientific community is not sufficiently involved in helping to produce balanced and grounded scientific and methodological proposals regarding penitentiary reform. Since 2000, there has been a scientific-methodological centre in the staff of the Central Apparatus of the State Department consisting of 11 full-time units; however, during this period, not a single unit has been filled, although the salary fund is often used for rather immodest, even defiant, bonus incentives for the management staff in the absence of proper grounds for this.

5. Significant problems are characteristic of personnel work. The number of penitentiary personnel is not proportional to the tasks assigned to the penitentiary service, where the dominant emphasis is placed on supervision and security. Staffing levels have not been brought into line with scientifically grounded norms for many years. There is a shocking social inequality in the remuneration and benefits that certified colony staff and the management staff of the service have, which leads to dissatisfaction, corruption, abuse, and at times resignation from work.

General Conclusion

Studying the issue of the state of affairs in the State Penitentiary Service does not provide confidence in the service's ability to independently, competently, responsibly, and effectively perform the functions and tasks assigned to it.

Proposals regarding urgent primary and subsequent actions in the direction of implementing the reform of the State Penitentiary Service

1. The President of Ukraine and the Government of Ukraine should finally show political will and subordinate the State Department of Ukraine for the Execution of Punishments to the Ministry of Justice, as required by Ukraine's obligation to the Council of Europe upon joining this international organisation in 1995. According to the current Law "On the Cabinet of Ministers of Ukraine," the Government has sufficient authority for this. For the legislative consolidation of the subordination of the Department, consider and adopt the draft Law registered in the Verkhovna Rada "On Amendments to Certain Legislative Acts of Ukraine Regarding the Management of the System of Bodies and Institutions for the Execution of Punishments" (Without such legislative regulation, the Ministry of Justice has no legal grounds today to influence the activities of the Department, since all initiatives of the Ministry of Justice leadership are simply ignored by the Head of the Department).

2. Jointly with the Ministry of Justice and other state executive bodies, develop and submit to the Cabinet of Ministers of Ukraine for approval a Concept of State Policy in the field of executing criminal punishments and a Strategy for Reforming the Penitentiary Service for 2008–2012. Define in the Strategy concrete directions, tasks, paths, means, and measures for implementing a radical reform of the penitentiary service, taking into account the prospects of the socio-economic development of Ukraine, the state's European integration choice, Ukraine's international obligations in the field of human rights, and generally accepted standards for the treatment of prisoners.

3. Conduct a comprehensive study of the state and quality of the personnel provision of the penitentiary service and adopt a target state programme for improving the professional selection, training, social security, and protection of the service's personnel.

4. Amend the Penitentiary Code with the aim of bringing it into compliance with the new Penitentiary Rules adopted by the Committee of Ministers of member states of the Council of Europe on 11 January 2006.

5. To ensure scientific support for the service's activity, the conduct of relevant scientific research, the development of standards for staff activity and scientifically grounded staffing standards, criteria for assessing the professional competence of employees, and the improvement of scientific-methodological support for staff activity, develop and approve a plan of necessary government measures.

VIII. Concluding notes

It would be good if this material were read by the President of Ukraine and his Secretariat so that they would understand their fatal mistake in appointing and constantly patronising their fellow party member – the Head of the Department, who by his disgraceful actions tarnishes the President first of all and shames Ukraine. If the President, despite the persuasiveness of the information presented here, still has any doubts, he can use his Decree to create any commission, involve unbiased experts and human rights defenders, state regulatory bodies, and seriously look into the state of affairs in the Department (a plan for verification by experts has already been developed and is presented in this material), and only then make a resolute decision.

Or perhaps the President should meet with human rights defenders, who in no way can be accused of political bias, as the Head of the Department likes to react to any checks, and listen to the opinion of people who have known the state of affairs from the inside for several years. They could tell the Head of State many convincing things. This would be a wise decision, for the President, as the guarantor of constitutional rights and human rights, must rely first and foremost on the opinion of the people and heed their demands.

Next Wednesday, 20 February, the President plans to visit the Lukyanivskyi Pre-trial Detention Centre in Kyiv. I have no doubt that everything there will be whitewashed, washed, painted, drilled, and prepared for his visit. But he will still be strongly impressed by the conditions of detention of prisoners whose guilt has not yet been determined by the court, yet they are in significantly worse conditions than repeatedly convicted persons in maximum-security institutions.

Or perhaps the President, to obtain an objective vision, should change his route at the last moment and go to the Boryspil or Bucha colony (they are quite close to Kyiv), where he will see the real, unprepared picture? And then he will personally be convinced of the rightness of the public, which can no longer tolerate such a decline in the penitentiary system.

I would like the Government of Ukraine to understand the urgent need to look at the activities of the State Penitentiary Service from a statist position, conduct a critical inventory of its activities and needs, and develop such a programme and approach to the radical reform of the service that would make it impossible for such negative phenomena as those described in the material—abuse of office, corruption, and neglect of the rights of both staff and convicted persons—to occur.

All the more so because in his letter to the Head of the Department, Mr V. Koshchynets, dated 19 January of this year, the First Vice Prime Minister, O. Turchynov, in essence, in a generalised form, confirmed the existence of corruption, abuse, and brutal human rights violations in the prison department and expressed the concern of the new Government of Ukraine regarding these negative phenomena. True, the First Vice Prime Minister demanded something unrealistic from the leadership of the Department: to restore order and report to the government by April 2008. Unfortunately, Mr O. Turchynov might not know that, in essence, the leadership of the Department has no vision at all of what to do and how to restore order. So is it worth demanding from people what they will not do or will do poorly? Is it not better to look for better managers, or at least more competent ones?

I think that even for convicted persons who are serving criminal punishments but remain citizens of Ukraine, it would be interesting to read this material. Then they would see that there are organisations that would like to and are doing something so that the rights of convicts are observed and they could realise their chance to return to a normal life in society.

It is also useful for the staff to perform an internal self-audit and understand the importance of the mission assigned to them by the state regarding the resocialisation of persons who have committed criminal offences and the desire of non-governmental organisations to help them and also to protect their rights.

I think that after reading this material, both non-governmental organisations and representatives of the media will understand the importance of exerting pressure on the leadership not only of the Department but also of every government body, which should actually serve the people and only the people, and not their own political parties, corporate or personal interests, so that government bodies understand that they are controlled by society, that they are accountable to it, and that their activity should only be transparent and open.

The leadership of the Department and its regional directorates will surely read through everything written attentively, will deny something, and make excuses. Although, Mr V. Koshchynets, it would be better for you to quietly step down from your position before you are removed and you leave an even more negative mark in the history of public administration. After all, receiving the disgraceful "Thistle of the Year" from the human rights community (on a competitive basis!) two years in a row for neglecting human rights—forgive me, that is too much. And there would be less shame before Ukrainian society, the employees of the penitentiary system, and the international community. But as it is, you have already entered the negative "history" of Ukraine of recent years.

Oleksandr Betsa, expert on penitentiary issues