The Shrouded "Openness", or How the Head of the Prison Department, Koshchynets, Lost in Court

The mortality rate in penal institutions, like the incidence of tuberculosis, is one of the indicators reflecting the conditions of prisoner detention, and its trend serves as evidence of the effectiveness of the system's personnel in providing medical services to ailing prisoners. Recently, the Department's leadership has been claiming certain successes in the provision of medical services and the reduction of mortality rates.
Indeed, regarding the critical observations of the Interdepartmental Commission's Report on morbidity and mortality in the Department's institutions, the Department’s document provides optimistic information:
"Due to measured and consistent work regarding the medical and sanitary support of persons deprived of liberty, the number of deaths in the Department's institutions over the last 5 years has been reduced by nearly 25% (2003 — 957 deaths; 2006 — 716 deaths). In the current year, a positive trend is also present (in the first 9 months of 2007, 544 people died in State Penal Service institutions, which is 25 fewer than in the same period of 2006)."

And in a letter to Mr. Ye. Zakharov regarding the presentation of the "Burdock of the Year" anti-award, Mr. Koshchynets asserts:
"The mortality rate in penal institutions compared to the same period last year has decreased by 7%, and in pre-trial detention centres by 12%.
In 2005, compared to 2004, the incidence of tuberculosis in penal institutions decreased by 14%."

According to "Donetsk Memorial" data, mortality in all the Department's institutions per 1,000 prisoners has, conversely, risen since 2003. It stood at 4.3 in 2003, 5.08 in 2005, and 4.87 in 2007. To clarify these discrepancies, the head of the public human rights organisation "Donetsk Memorial", O. Bukalov, decided to learn about the procedure by which the Department calculates mortality and tuberculosis incidence rates. To this end, on 26 November 2007, he submitted a corresponding information request to the head of the agency, V.V. Koshchynets. The request was sent in accordance with Article 40 of the Constitution of Ukraine and the norms of the Law of Ukraine "On Information".
A response to the request was not received for two months. This fact serves as further evidence of the sincerity and authenticity of the leadership's numerous assurances regarding cooperation with human rights organisations and the alleged openness of the system.
Due to the failure to provide a response within the period defined by law, which in itself is a violation of the requirements of the Law of Ukraine "On Information", O. Bukalov appealed to the Head of the Department again via a letter dated 23 January 2008, in which he noted the failure to provide a response and urgently requested that the information be provided.
In the received response dated 6 February 2008, signed by the head of the administration, S.B. Zhyvaho, it was reported that "when calculating mortality and tuberculosis incidence rates, we use methodologies recommended by the Department of Social Hygiene...". However, the requested information was missing from the response; in other words, there was no substantial reply to the inquiry. As the aforementioned letter did not contain the requested information, it cannot be considered a meaningful response to the request.
It is important to note that the letter sent in February was effectively the first response to the request from 26 November.
The head of "Donetsk Memorial" appealed to the Department for the third time, sending a letter on 16 February 2008 to both the head of the agency and Mr. Zhyvaho, in which he noted that "the failure to provide a response violates the requirements of Article 40 of the Constitution of Ukraine, as well as Article 29 of the Law of Ukraine 'On Information', which prohibits restricting the right of access to open information, and Article 32 of this law, which proclaims the mandatory nature of providing information."
The letter noted that the failure to provide a substantial response also violated Article 33 of this Law, which requires that a written notification of the intent to provide information or a refusal to do so be given within 10 days, and no later than a one-month period—that is, by the end of December 2007—the Head of the Department was obliged to provide a substantial response. Moreover, the failure to respond violates the requirements of Article 19 of the Law of Ukraine "On Democratic Civilian Control over the Military Organisation and Law Enforcement Agencies of the State", which guarantees the possibility of receiving information about the activities of law enforcement agencies.
O. Bukalov emphasised that the fact of not providing a response on the merits of the questions also contains signs of an offence provided for by paragraph 'g' of Article 5 of the Law of Ukraine "On Combating Corruption", which provides that "a civil servant or other person authorised to perform state functions has no right... to refuse information to natural or legal persons if the provision of such information is provided for by legal acts, to intentionally delay it, or to provide false or incomplete information."
Instead, the offer to send a response no later than 27 February was again ignored by the Head of the Department.
It was for this reason that the next step taken by the head of the human rights organisation was to appeal to the District Administrative Court of Donetsk Region with a lawsuit regarding the unlawful failure to provide information by the Head of the Department, V.V. Koshchynets. At the same time, an appeal was sent to the General Prosecutor's Office regarding the violation of legislative requirements by the head of the agency.
In his lawsuit to the court, the head of the non-governmental organisation noted, in particular, that "the Head of the Department for the Execution of Sentences, without sufficient grounds, limited my right to obtain information, which is, moreover, socially important and directly relates to issues of human rights observance in the institutions of the penal system. This right of mine is guaranteed by parts 1 and 2 of Article 34 of the Constitution of Ukraine, part 1 of Article 9, parts 1, 2, and 7 of Article 10, and parts 2 and 3 of Article 32 of the Law of Ukraine 'On Information'. Furthermore, the responses were provided to me in violation of the deadlines established by Article 33 of the Law of Ukraine 'On Information'. Thus, my constitutional right to receive information, provided for by Article 40 of the Constitution of Ukraine, has been violated.
The violation of the requirements of the Constitution of Ukraine and current legislation on the part of the Head of the Department for the Execution of Sentences is not occurring for the first time and, in my view, testifies to a contempt for the law; it degrades my dignity, forcing me to obtain any necessary information by appealing to the court, and I suffer significant moral damage."
The plaintiff appealed to the court and requested:
- "to recognise that the sending of the response to the information request was carried out in violation of the deadlines established by Law.
- to recognise the failure of the Head of the State Department for the Execution of Sentences, V.V. Koshchynets, to provide the requested information within the legally prescribed timeframe as unlawful."
The District Administrative Court of Donetsk Region considered the lawsuit on 10 June.
However, since the moment of filing the lawsuit, quite interesting events had occurred. On 6 March, the head of the Department's medical administration, Mr. S. Zhyvaho, reported for the second time which methodologies they use, without providing an answer on the merits. And on 14 March, the first deputy head of the Department sent a letter containing the requested information. Later, he sent a letter with notification of an internal investigation within the Department into the reasons why the response was provided late. But all this fuss began only because the General Prosecutor's Office became interested in the violations of current legislation. This algorithm has been applied by the Department more than once. When last year Mr. V. Koshchynets issued an order regulating public access to institutions only two days a week—on weekends—"Donetsk Memorial" appealed to the head of the agency with a proposal to cancel the illegal order. The head refused, because his order was issued "to streamline public visits". Only after "Donetsk Memorial" appealed to the General Prosecutor's Office, which recognised this order as illegal, was it cancelled.
A similar situation occurred with the ignoring of the requirements of the Law of Ukraine "On Information" by the heads of the Department's territorial bodies and their failure to provide responses to requests. Mr. Koshchynets did not react to the appeals of "Donetsk Memorial" regarding the violations of legislation by high-ranking officials of the agency. This was until the non-governmental organisation sent a letter to the General Prosecutor's Office and to the Minister of Justice. Having received a letter from the Ministry of Justice on 23 March 2007, Mr. Koshchynets issued an order that same day in which he demanded from his subordinates:
"- to ensure strict compliance with the requirements of information legislation when informing citizens and non-governmental organisations about the activities of bodies and institutions for the execution of sentences, in particular when providing information upon request;
- to take measures regarding the proper processing of appeals and requests and the provision of well-grounded responses within the timeframes established by legislation."
However, as early as December of that same year, this order was violated by Mr. Koshchynets himself.
But let us return to the court. In court, the representative of the agency head reported that an internal investigation had been conducted in the Department, and employees allegedly guilty of the untimely provision of information upon request had been identified. Therefore, there were no longer any grounds for recognising the actions of the Head of the Department as unlawful.
Instead, the plaintiff noted that Mr. V. Koshchynets, as Head of the Department, had received letters from "Donetsk Memorial" three times with a request to provide information. He was informed that neither the first nor the second letter had received a substantial response from his subordinates. Moreover, in the end, the response to the request was provided not because one of the agency's employees broke the law and the head of the agency decided to correct a subordinate's mistake and ordered the information to be provided. No! A substantial response was provided only after an appeal to the Department from the General Prosecutor's Office.
This fact confirms that Mr. Koshchynets does not consider it necessary to respond to a non-governmental organisation, even if the law and his own orders demand it. Only an appeal from the General Prosecutor's Office has significance for him, and it is to this appeal that he is forced to react. At the same time, the employees who, with his own knowledge, did not provide the information are made the guilty parties. But these are mere trifles for a respectable leader. However, it is precisely from these circumstances, in the plaintiff's opinion, that he himself is fully responsible for the untimely provision of information.
The court considered all the circumstances, took into account all the arguments communicated by the plaintiff and the respondent's representative, and recognised as unlawful the failure of the Head of the State Department for the Execution of Sentences, V.V. Koshchynets, to provide the requested information within the time limit established by law.
It is unlikely that Mr. Koshchynets will agree with such a court decision, because it contradicts his numerous assurances about cooperation with the public, about the openness of the system, and about creating a penitentiary system of the European model.
Instead, as it turned out, in reality, the head of the agency practices anything but European standards of attitude towards the public, and indeed towards his own duties as well.