Who needs a new ‘old’ Concept?

The submitted project of the Concept of the Target Programme for the reform of the State Criminal-Executive Service of Ukraine for 2008–2017 (hereinafter – the Concept) represents yet another document aimed at at least somehow improving the current state of the State Criminal-Executive Service (hereinafter – SCES). Therefore, it seems appropriate to consider it in the context of existing regulatory documents that relate to the issue of reforming the system of execution of criminal sentences, or should have solved certain issues of the SCES in the past.
Even citizens who are not well-versed in scientific approaches to solving existing problems, not to mention high-ranking officials, understand that for any process or activity to move forward, it is first of all necessary to identify the problem and determine the causes for the failure to achieve the set goals in the past. The next step should be to set goals (intermediate and final) that are planned to be achieved, and the corresponding measures and means by which the desired result will be reached.
In our opinion, the project of the Concept does not give any idea of such a phased process; its structure is rather chaotic, the set goals do not fully correspond to the tasks, there are no proposals for measures aimed at achieving the set goals, etc. In this regard, the project of the Concept cannot in any way be recognised as a thorough and comprehensive document for the reform of the SCES, which takes into account the achievements (which supposedly exist according to the Department’s definition) and the failures of past years.
Moreover, the provisions set out in the project can by no means be considered a “...programme-target method...”.
When studying it, the general impression is that the sole purpose of adopting this Concept is an attempt to obtain additional funds from the state budget, while the absence in the project of a clear range of measures on which these funds are planned to be spent creates prerequisites for a lack of control over their expenditure.
By the way, this conviction strengthens after an analysis of the stages of the project’s implementation, even by persons who do not have special accounting education.
Thus, at the first stage, activities will be devoted to measures that “require significant financial expenditures”: 1) creation of a regulatory and legal framework; 2) creation of legislative and regulatory prerequisites for further reducing the number of convicts; 3) study of foreign experience; 4) optimisation of the management system. And only one item does not cause significant objections – bringing the conditions of detention of convicts into line with the requirements of current legislation.
Therefore, the authors of the project envisage the payment of fees for the preparation of draft laws; travel expenses “for experience” (although we have been “gathering” it for more than 16 years – and where are the results of these trips?); the optimisation of the management system, apparently, implies an increase in managerial staff... And the “lion’s” share of the Programme’s budget is supposed to go to all this. Even bringing the bodies and institutions of execution of sentences into line with European standards at the second stage of activity, in the opinion of the project’s authors, will require significantly less funds.
In addition, the project has other significant flaws.
1. The project of the Concept begins with the definition of the problems it is supposedly aimed at solving. However, a comparative analysis of the project with, for example, the State Programme for Improving the Conditions of Detention for Convicts and Persons in Custody for 2006–2010, the Programme for Further Reform and State Support of the Criminal-Executive System for 2002–2005, as well as other similar documents adopted between 1992 and 2002, shows that the defined problems have practically not changed over these years. They continue to be: 1) conditions of detention; 2) obsolescence of buildings and structures; 3) the institution of compulsory treatment; 4) the state of the criminal-executive inspection’s activity; 5) the functioning of the institution of compulsory treatment for alcoholism (in some documents – also for drug addiction and toxicomania); 6) the work of penal institutions and professional training of convicts; 7) medical care (especially for patients with tuberculosis and AIDS); 8) improper treatment of convicts by staff, corruption; 9) work with personnel.
This section actually completely duplicates the general provisions of the Concept for the Reform of the State Criminal-Executive Service of Ukraine.
The reform of the SCES, “started” according to the definition of the State Department of Ukraine for the Execution of Sentences (hereinafter – the Department) in 1991 (and, as historical experience shows, much earlier), has always been aimed at solving the mentioned problems, yet none of them has been solved to this day. The project of the Concept indicates that “...due to insufficient budget funding, it was not possible to fully implement some measures...”, however, in our opinion, the existence of the same problems proves that, on the contrary, only some measures were successfully implemented.
Instead of a detailed analysis of the causes of this state of affairs, the Department continues to initiate the adoption of new documents “with old content”, from which, as the experience of past years shows, there will be no more benefit than from the previous ones.
The analysis of the project also shows that the Department (meaning the authors of the project) deliberately avoids the provision consolidated in the Concept of Criminal Justice Reform that “...the functioning of the system of execution of criminal sentences should be carried out by a demilitarised State Criminal-Executive Service of Ukraine under the jurisdiction of the Ministry of Justice of Ukraine...”. The only references in the text of the project that testify to a certain relationship of the SCES to the Ministry of Justice are the indication that “...the need to reform the criminal-executive system is defined as a priority in the activities of the Ministry of Justice of Ukraine...”, as well as a rather controversial proposal: “...ensuring the openness of the SCES’s activities for democratic civil control, by providing for the possibility of the administration (?!) of the criminal-executive service by the Ministry of Justice...”.
2. The content of the next section, “Analysis of the causes of the problem and justification of the need for its resolution by the programme method”, is not consistent with the provisions of the previous subsection. Moreover, it does not even correspond to its own title, because it essentially contains neither an analysis of the causes of the problems nor a justification of the need to solve them by the stated programme method.
For example, the problem stated in the first section regarding the existence of a practice of improper treatment of convicts and persons in custody by personnel, as follows from the content of section 2, does not relate to factors that negatively affect the work of bodies and institutions of execution of sentences and pre-trial detention centres. At the same time, another question arises in this regard: why does the failure of personnel to comply with the requirements of current legislation require resolution exclusively by the programme method? Why is the current system of control and supervision insufficient for this?
Similarly, the problem of medical care, the urgency of developing new models of penal institutions for convicts and minors, and the need to improve the work of the criminal-executive inspection along the lines of a probation service were left “unattended” by the authors of the Concept project.
It seems appropriate to pay more attention to the need to transform the criminal-executive inspection into a probation service, as current documents, in particular the Concept of Criminal Justice Reform, discuss the creation of a new service with that name under the jurisdiction of the Ministry of Justice of Ukraine.
3. Along with numerous references to the need for reform due to Ukraine’s accession to new international documents, the project lacks any measures aimed at introducing preventive mechanisms for the prevention of torture. And this is despite the fact that the Concept for the Reform of the State Criminal-Executive Service of Ukraine states: “...In order to prevent torture in penal institutions and pre-trial detention centres, it is necessary to:
ensure compliance with the requirements of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
ensure full compliance with the requirements of the Committee of Ministers of the Council of Europe and the decisions of the European Court of Human Rights in cases against Ukraine regarding the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) concerning the prohibition of torture;
strengthen public control over the observance of the rights of persons in custody and those serving sentences during the execution of criminal sentences...”.
On the contrary, the prevention of torture is named among the ways and means of solving the problem outlined in the Programme.
In general, the generalisation of the problems indicated in the project of the Concept leads to the conclusion that to complete the reform of the SCES, it is only necessary to: 1) create an educational institution; 2) renew production assets; 3) increase funding; 4) exempt penal institutions from paying taxes (reduce the tax burden on them). And supposedly thanks to these measures, the goal will be achieved: “...ensuring opportunities for protecting the interests of the individual, society, and the state by creating conditions for the correction and prevention of new crimes by persons in custody and those serving sentences, as well as the prevention of torture and inhuman or degrading treatment of persons, and the gradual approximation of detention conditions to European standards...”.
4. The constant emphasis on the fact that the need for reform is due to the adoption of the new Criminal Code, the Criminal-Executive Code of Ukraine, and the Law of Ukraine “On the SCES of Ukraine” makes one want to remind them that almost seven years have passed since the adoption of the Criminal Code of Ukraine, four years since the Criminal-Executive Code, and three years since the named Law. At the same time, for some reason, it is not mentioned that before the adoption of the Criminal-Executive Code and the Law of Ukraine “On the SCES of Ukraine”, the Department constantly determined that these documents would completely change the state of the penal system and allow for the implementation of the reform. Today, for unknown reasons, they have turned out to be among the factors that are not means, but grounds for reform.
5. When preparing the project, its authors also departed from the Department’s favourite “gimmick” – improving educational work with convicts, which is mentioned as one of the main goals of further SCES reform in the corresponding Concept: “...development of a modern model for the organisation of social-educational and psychological work with convicts and optimisation of the structure and size of the social-psychological service, improvement of the practice of providing psychological assistance to persons in custody and those serving sentences; development and implementation of an effective mechanism for investigating complaints of persons in custody or serving sentences in penal institutions regarding improper treatment by personnel of the criminal-executive service...”.
6. The content of the section “Determination of the optimal variant for solving the problem based on a comparative analysis of possible variants” is unclear.
Firstly, in it, conditionally speaking, only two variants are compared: the implementation of the Programme for Improving Conditions of Detention of Convicts and Persons in Custody (which in itself, even based on the title, cannot be a comprehensive document for the reform of the SCES) and the creation of a new Programme. At the same time, it should be noted that the main tasks of the Programme included: improving the system of organisational-legal support for the functioning of the State Criminal-Executive Service; bringing the conditions of detention, medical-sanitary, and domestic support of convicts and persons in custody into compliance with the requirements of legislation; strengthening the material-technical base of educational institutions; facilitating the activities of State Criminal-Executive Service enterprises; updating and maintaining in proper condition objects of engineering support, engineering-technical means of protection, and communications. The named goals even to some extent exceed those set in the project.
Secondly, the project authors for some reason point to only one flaw of the named [programme] – underfunding. But under such conditions, would it not be more appropriate to talk about ensuring one hundred per cent budget inflows if the difficulties (as the project authors indicate) consist only of the lack of funds?
7. As a general flaw of the project, it is necessary to note the incorrect use or confusion in the application of terms and concepts. Thus, it is necessary to remind the project authors that the terms “policy in the sphere of criminal and criminal-executive legal relations” and “criminal-executive policy” are not identical, in view of which they cannot be used as synonyms.
A regulatory framework will never “...ensure the fulfilment...” of any functions. Only workers can do that...
8. The subsection “Ways and means of solving the problem...” does not give any idea specifically about the means and ways. It only mentions some “mythical” measures, the implementation of which is supposed to lead to certain consequences. As a result, the impression is created that the developers of the project of the Concept themselves have no idea what exactly needs to be done to reform the SCES, which is why they limited themselves to such a general definition. Along with this, the absence of clear definitions will contribute to the impossibility of exercising control over the progress of the Programme’s implementation if it is adopted, which, in our opinion, will only negatively affect the state of the reform.
10. The section “Expected results...”, in our opinion, is the weakest in terms of preparation quality (although the term “quality” can only be used regarding the text of the project very conditionally) and practically contains “expectations of a miracle”, because most of the indicated results will not be achieved due to the lack of measures in the project that would contribute to this. In particular, it is unclear how, for example, the construction of new penal institutions will allow for a reduction in recidivism? How is it planned to “form in the public a proper understanding of the importance of the SCES’s activities”? How exactly will the prevention of human rights violations be ensured, etc.?
The mentioned flaws of the Concept project are not exhaustive.
Summing up the above, it is necessary to conclude that the project of the Concept of the Target Programme for the reform of the State Criminal-Executive Service of Ukraine for 2008–2017 does not meet the requirements for such documents, was developed for the internal needs of the State Department of Ukraine for the Execution of Sentences, does not reflect the real state of the SCES, does not contain an analysis of failures and problems, and does not define clear measures aimed at improving the situation, in view of which it cannot be submitted for approval and requires thorough revision.

Senior Researcher
of the sector for research on problems of criminal-executive
legislation of the Institute for the Study of Crime Problems
of the National Academy of Legal Sciences of Ukraine, Ph.D. in Law I.S. Yakovets