Comments on the Ukrainian side’s commentary regarding the Concluding Observations of the Human Rights Committee, prepared by ‘Donetsk Memorial’

Comments on the Ukrainian side’s commentary regarding the Concluding Observations of the Human Rights Committee, prepared by ‘Donetsk Memorial’

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2. To ensure regular oversight of all pre-trial detention centres and penal institutions, interviews with convicted persons regarding personal matters are conducted once a month, and decisions made by the administration of penitentiary institutions are reviewed for compliance with the law. Article 24 of the Criminal Executive Code of Ukraine defines the list of persons who have the right to visit penal institutions without special permission for the purpose of monitoring. Prosecutors are required to hear complaints from detained and imprisoned persons regarding the violation of their rights and freedoms and to investigate such cases. In accordance with Article 25 of the aforementioned Code, supervisory commissions are created to ensure public control over the observance of the rights of convicts during the execution of criminal sentences.

DM Supervisory commissions do not, in practice, have the function of exercising public control; this control is mentioned only in the Code and the preamble to the Regulations on Supervisory Commissions. The Regulations themselves were developed by the Department. The commissions consist of local government officials and often exist only formally. There are no public reports on the activities of such commissions, and prisoners are often not even aware that they can complain to them. Therefore, the supervisory commissions effectively only simulate public control. Indeed, the Department would be unable to cite even two or three examples of cases where a supervisory commission took the initiative to identify violations of prisoners’ rights, which were subsequently rectified. The achievements of such commissions are ‘zero’, which reflects their true effectiveness.

11. In recent years, the Government of Ukraine has taken several steps to support human rights within law enforcement agencies, namely:
• In October 2004, the position of Advisor to the Minister of Internal Affairs of Ukraine on Human Rights and Gender Issues was introduced;
• In December 2005, a Public Council on Human Rights was established under the Ministry of Internal Affairs of Ukraine; similar councils were established under the regional departments of the Ministry. Public councils are collegiate bodies where representatives of civil society and law enforcement agencies jointly identify the most pressing problems related to human rights and the activities of internal affairs agencies, as well as develop strategies to overcome such problems;

DM The Department for the Execution of Punishments completely ignores the Council of Europe’s recommendation to create an independent inspection body to conduct audits of penal institutions. The Public Council created under the Department for the Execution of Punishments is headed by a former official of the agency and does not respond to proposals from human rights organisations to hold discussions on cases of human rights violations in these institutions.

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17. However, the state of observance of citizens’ constitutional rights in pre-trial detention institutions gives rise to concern, as 103 detainees died in them over the past year, while the overall average number of persons held in such institutions has decreased. Almost half of all deaths occurred in the detention centres of Kyiv and Donetsk.


DM The number of deaths in pre-trial detention centres (SIZOs) is alarming of late; however, the range of causes for these incidents is quite broad, and responsibility for a death in a SIZO often does not lie with the detention centre staff. At the same time, it is impossible to conduct an independent study into the causes of such a high number of deaths because the Department for the Execution of Punishments only allows the Human Rights Commissioner access for such research and does not support the initiatives of other structures to conduct monitoring of human rights observance in the system’s institutions.


28. It should be noted that in 2007: • in specialised departments of the Academy of Postgraduate Education for the penitentiary system, training was provided for 121 medical staff and approximately 300 nurses, who received qualifications and certificates of completion of training in accordance with the law;
• 113 HIV-positive prisoners received intravenous medication, which is twice the 2006 figure.
As of 1 January 2008, 5,017 prisoners out of a total of 150,000 held in 181 institutions of the State Penitentiary Service were registered as HIV-positive;

DM The dynamics of the number of HIV-positive prisoners are revealing – from 1,917 on 1 January 2004 (10.0 per 1,000 prisoners) to 5,017 persons on 1 January 2008 (33.5 per 1,000 prisoners), i.e., an increase of 3.3 times over four years.

• The State Penitentiary Service created wards in 11 specialised medical institutions for the inpatient treatment of prisoners serving life sentences;

DM The availability of wards for the treatment of life-sentenced prisoners does not mean they are actually receiving treatment. For example, life-sentenced prisoners at the Dnipropetrovsk Penal Colony No. 89 have complained about major problems with medical services.

32. In order to bring the conditions in which prisoners and detainees are held into compliance with international standards, the Government of Ukraine approved the State Programme for Improving Conditions for Convicted Persons and Persons Taken into Custody for 2006–2010 in 2006.
33. The main goals of the programme: improvement of the system of organisational and legal support for the functioning of the State Penitentiary Service; bringing the conditions of detention, medical-sanitary, and domestic support for convicts and persons taken into custody into compliance with legislative requirements; strengthening the material and technical base of educational institutions; facilitating the activities of State Penitentiary Service enterprises; updating and maintaining in good condition engineering support facilities, and engineering and technical means of security and communication.
34. The implementation of these measures provided for by the programme will help to improve the conditions for convicts and detainees.

DM This programme was adopted in violation of the approval procedure: many of its measures were intended to be financed from local budgets, yet local authorities have no idea about this programme, did not consider it, and therefore do not plan or provide funds for the implementation of its measures. This programme, like a number of previous ones, lacks effective mechanisms for implementation and is, to a large extent, a declaration rather than an algorithm of action carefully developed and agreed upon with all responsible parties. None of the previous programmes have been even half-completed, and reporting on plans that, de facto, are not subsequently implemented, rather than on completed programmes, is a characteristic feature of the reporting of the Department for the Execution of Punishments.

35. It should be noted that in the last three years, cooperation with non-governmental organisations has intensified. Various non-governmental organisations visited institutions of the State Penitentiary Service 6,168 times in 2005, 8,227 times in 2006, and 9,467 times in 2007.
36. International organisations also show growing interest in cooperating with institutions of the State Penitentiary Service. Over the last three years, members of international organisations alone have visited such institutions 845 times, including 145 times in 2005, 233 times in 2006, and 467 times in 2007.

DM The Department’s statistics regarding the number of visits by non-governmental organisations are partly unconfirmed in fact and are falsified, although the general trend is indeed towards an increase in visits by non-governmental organisations to the system’s institutions. Instead, the vast majority of these visits are related to the provision of assistance to the institutions by these organisations, and the conduct of educational and cultural events for convicts, and almost never concern visits aimed at monitoring or exercising public control over the observance of human rights.
The statistics regarding visits to institutions by members of international organisations are also quite artificial. For instance, of the 467 visits in 2007, 178 took place in the Ternopil region, where there are only three (!) penal institutions, whereas the Dnipropetrovsk region, where 12 institutions are located, saw only 2 visits for the entire year, and the Luhansk region, which also has 12 institutions, saw 4 visits per year. Therefore, the cited statistics very poorly reflect the real situation regarding the openness of institutions to non-governmental organisations. Furthermore, there is still an official procedure for visits to institutions by foreigners, where permission must be requested from the Department in Kyiv for every single visit, and the Security Service of Ukraine is informed about such a visit, and only after such coordination is permission granted for a foreigner’s visit to a colony.

37. The number of inspections of the bodies and institutions of the State Penitentiary Service by various monitoring agencies has increased significantly, as has the number of visits by representatives of foreign States, religious and non-governmental organisations, and the mass media.

DM There are no ‘monitoring agencies’ in Ukraine, and only two or three monitoring visits have been conducted by non-governmental organisations over the last three years. At the same time, there are even more cases where the Department refused to allow non-governmental organisations to conduct monitoring without explaining the reasons. Furthermore, the results of monitoring have no influence whatsoever on the activities of the agency. ‘Donetsk Memorial’ has been issuing annual Reports on the Observance of Prisoners’ Rights for three consecutive years, which conclude with recommendations for improving the human rights situation. The Department not only takes no measures in response to these recommendations but does not even consider them or provide any reaction to the proposals in the Reports.
Some territorial administrations do not provide information about their activities. Over the past two years, non-governmental organisations have won seven court cases regarding the failure of agency structures to provide information, including against the head of the Department, who did not provide information on the calculation of prisoner mortality rates.

38. To humanise and improve the conditions of detention for detainees, amendments were made to the Law of Ukraine ‘On Pre-trial Detention’ to improve the legal status of detainees and the conditions of their detention. This includes the cancellation of some disciplinary punishments that were imposed on prisoners, such as the deprivation of the right to purchase food and receive parcels for a month. Efforts are also being made to ensure adequate access to legal literature for persons held in pre-trial detention centres, including the interpretation of certain constitutional and legal provisions.

DM Together with some positive changes regarding disciplinary punishments, the Department still retains ‘labour’ as a disciplinary punishment, despite the requirement of Rule 28 of the UN Standard Minimum Rules for the Treatment of Prisoners. Moreover, a refusal to perform such work often serves as the final straw for declaring a prisoner a ‘malicious violator’ and adding another 2–3 years of imprisonment (Art. 391 of the Criminal Code of Ukraine). Prisoners are forbidden from hanging reproductions from magazines or photos of relatives near their beds.
Access to legal literature is also often merely a theoretical possibility, where an institution holding more than a thousand people has only 2–3 copies of the European Prison Rules. Apart from a publication in the departmental newspaper, the Department has not provided this document to prison libraries.