Departmental independence – a necessity or a whim? - Commentary on the article

I have just read the article by the well-known Ukrainian human rights activist Oleksandr Bukalov, which is devoted to issues of the departmental subordination of the Ukrainian penitentiary system.

First of all, I would like to thank Mr Bukalov for his thorough coverage of this issue and his active work in the field of penitentiary reform in Ukraine. At the same time, I feel it is necessary to express a personal point of view on this matter.




Therefore, I would like to emphasise that if the Recommendations and Conclusions of the Council of Europe are taken as the criterion of truth, then, undoubtedly, everything points to the need for the departmental subordination of Ukrainian penitentiary institutions to the Ministry of Justice of Ukraine. But having looked through the European Prison Rules, the essence and significance of which, I believe, cannot be doubted, I could not find any indication of those ‘European standards’ regarding the departmental subordination of penitentiary institutions, other than that the penitentiary service should not be under the departmental subordination of the police, the military, and criminal prosecution bodies. This is exactly what, it seems, has been implemented in Ukraine.



Mr Bukalov’s article cites the conclusions of the CoE and EC: ‘We recommend... paying primary attention to the need to create a penitentiary service as an autonomous civil agency.’ In my opinion, this recommendation has been fulfilled.



However, the Department is ‘accused’ of failing to shed the characteristics of a military agency. But, as far as I am concerned, there is no proof that the State Department for the Execution of Punishments would shed them if it were under the Ministry of Justice. (By the way, in the translation that can be found on the Internet, it refers not to an ‘autonomous civil agency’ but to an ‘autonomous social organisation’).



Incidentally, those Council of Europe experts who formulated the above-mentioned conclusions regarding the reform of the Ukrainian prison system emphasised: ‘Whom the head of the system will be accountable to is purely an internal matter for Ukraine. Therefore, we will not be giving any recommendations on this matter. But there is a fundamental point. No one should interfere in the activities of the bodies and institutions for the execution of sentences, especially at the regional level. That is, the existing vertical of subordination of penitentiary institutions must be preserved. After all, the consequences of violating this are unpredictable. And we have stated this directly to the Ukrainian parliamentarians, on whom the future fate of the penitentiary system depends today.’



Furthermore, one might ask about foreign experience? For example, how did the subordination of Russia’s criminal executive system to the Ministry of Justice affect it? Or perhaps it is better to pose the question this way: how did its subordination miraculously affect the system?



By the way, I wanted to ask a question. The article notes that all progressive changes in the field of sentence execution are ‘in every way hindered by the Department and its lobbyists in the Ukrainian Rada’. I would like to know what is meant by ‘Ukrainian Rada’?



It seems to me that all the arguments surrounding the re-subordination of the penitentiary system boil down to some almost mythical ‘European standards’, to the idea that ‘re-subordination will contribute to the protection of prisoners’ rights’, and much else besides. But in my opinion, many questions remain unanswered. I cannot help but express the suspicion that all the arguments mentioned above are, to be honest, rather weak and overly declarative.



I may be wrong, but I do not recall the Ministry of Justice of Ukraine providing a full, thorough, informative, transparent official legal, social, economic, and criminological justification for the expediency of such re-subordination. Therefore, in my opinion, the conclusions to this analytical note sound too radical and declarative. However, I cannot help but agree with you that the discussion of this issue requires a public debate with the participation of representatives of all interested parties, non-governmental organisations, scholars, etc.



In my opinion, there are no grounds for saying that ‘the Department as an autonomous structure has shown its inability to ensure the standards of human rights observance’, just as there is no basis to claim that the Ministry of Justice will ensure the observance of these standards until arguments (in the true sense of the word) in favour of such subordination are provided.

Yours faithfully,

Dmytro Yagunov

www.dmytro-yagunov.at.ua