'I DO WHATEVER I WANT…'
The State Department of Ukraine for the Execution of Punishments (hereinafter—the Department) always emphasises its firm position on ensuring strict adherence to the provisions of current legislation, increasing expressions of humanism, and creating conditions for the rehabilitation of convicted persons, while simultaneously respecting their rights, freedoms, and legitimate interests.
In this regard, the existing practice of resolving issues concerning the transfer of convicted persons from one correctional colony to another is somewhat surprising.
Thus, Article 93 of the Criminal Executive Code of Ukraine establishes that a person sentenced to imprisonment shall serve the entire term of the sentence in one correctional or educational colony, as a rule, within the administrative-territorial unit corresponding to their permanent place of residence prior to conviction.
The transfer of a convicted person for further service of their sentence from one correctional or educational colony to another is permitted under exceptional circumstances that prevent the convicted person from remaining in that particular correctional or educational colony. The procedure for transferring convicted persons is determined by the regulatory legal acts of the State Department of Ukraine for the Execution of Punishments.
Therefore, as a general rule, persons sentenced to imprisonment serve the entire term of their sentence in one correctional or educational colony, as a rule, within the administrative-territorial unit corresponding to their permanent place of residence prior to conviction.
Why is this the case? During their time in one institution, a convicted person becomes accustomed to the level of requirements demanded of them, acquires a trade, and can continue their general and vocational education. The administration of the penal institution has the opportunity to comprehensively study the personality of the offender, their social ties outside the colony, and apply an individual programme of educational influence to them, along with other measures to facilitate subsequent social adaptation after release. Transferring a convicted person to another correctional institution, even one with the same security level, interrupts (stops) this process and forces them to start all over again. Such a situation leads to significant psychological, pedagogical, material-financial, and organisational losses.
However, these circumstances are not the only reasons why it is necessary for a person to serve their sentence in one institution, close to their previous place of residence.
The location of the penal institution significantly influences the exercise of the right to visits, as a result of which the extent of the punishment experienced by a particular person also depends on whether or not family ties are taken into account. The further away the prisoner serves their sentence from their previous place of residence and the residence of their relatives, the less frequently their relatives visit them.
Let us consider this by way of an example. Sh. and K. were each sentenced to two years of imprisonment under Part 2 of Article 309 of the Criminal Code of Ukraine. Since punishment is, among other things, a form of retribution, the court, in assigning the term of imprisonment, believed that the punitive aspect in this case was equal for both offenders. At first glance, if one adheres to the provisions of criminal law, this is correct. However, Sh. serves their sentence in the place where their relatives live, while K. serves theirs in an institution in another region. Throughout the year, Sh. will have short-term and long-term visits and will receive parcels from relatives.
K. also has relatives, but due to the remoteness of the colony, they do not have the opportunity to visit them. Thus, the punitive aspect of imprisonment for K. will be more burdensome than for Sh.
Visits with relatives significantly soften the punishment. In addition to spiritual and physiological satisfaction, during a long visit, the convicted person is released from work—that is, they practically receive a holiday—and they eat home-cooked food. Consequently, the degree of isolation of those who are not visited by relatives is significantly higher than that of those who have the opportunity to use such visits, as a result of which one can also argue that the volume of the punishment is increased.
The general rule regarding serving a sentence in one correctional or educational colony, provided for in Part 1 of Article 93 of the Criminal Executive Code (CEC), has certain exceptions; their transfer is allowed under exceptional circumstances that prevent the convicted person from remaining in that colony. The law does not define the list of these circumstances, but they are all primarily related to the person of the convicted individual.
Exceptional grounds that justify the transfer of a convicted person from one colony to another of the same security level may be (as indicated by the practice that has developed in recent years and academic research):
a) ensuring the personal safety of the convicted person or others (the one being transferred or those remaining); b) behaviour of the convicted person that makes their stay in the current environment impossible due to the convicted person's negative inclinations; c) transfer to another institution for the purpose of facilitating the solving of a crime; d) avoidance of other extraordinary circumstances in the colony (group disobedience, mass riots); e) natural disaster, epidemics.
And, finally, the transfer of convicted persons will take place during the reorganisation or liquidation of a correctional institution in connection with an urgent necessity.
If a convicted person falls ill, has a temporary disability, and requires special medical intervention, they may be transferred to a general clinical medical institution that operates with the rights of an interregional facility and serves patients from several regions. After recovery, they return to the colony where they were previously located. In the event of tuberculosis or an exacerbation of other chronic diseases, the convicted person is transferred to a specialised institution where the patient can receive the necessary medical care simultaneously with serving their sentence.
The procedure for resolving issues of transferring a convicted person to another institution depends on whether it is carried out within the same region or is interregional in nature. In the first case, the issue is decided by the Regional Commission of the territorial administration of the Department after a comprehensive study of the grounds, the opinion of the administration, and the characterisation of the convicted person; in the second case, it is decided by the Appellate Commission of the Department.
Currently, there is no separate document that would establish in detail the procedure for considering and resolving issues concerning the transfer of convicted persons from one institution to another.
However, as follows from the Regulations on the Regional and Appellate Commissions of the Department, approved by Order No. 261 of the latter dated 16 December 2003, the decision to transfer should be made at a meeting of the relevant commission (since such a form of their activity is enshrined in the Regulations), after a thorough study of the materials, clarification of the grounds for the transfer, etc.
In any case, there must be an initiator for the transfer of the convicted person, materials objectively confirming the need for such a transfer, consideration of these materials at a commission meeting, voting on the issue, formalisation of the consideration in the minutes, and the issuance of a document regarding the transfer or a refusal thereof.
In practice, the absence of clear formulations and grounds for the transfer of convicted persons allows, in necessary cases, for the worsening of their situation to the maximum extent, in particular by constantly transferring them from one colony to another. At the same time, the 'secrecy' of the activities of both the Regional and Appellate Commissions (most citizens have no information at all that such bodies exist) creates conditions for 'short-cutting' or failing to follow this procedure entirely.
It is precisely this practice that has developed, in particular, in the Pervomaysk Correctional Colony of the Kharkiv Region (No. 117). As soon as the administration of this institution is unable to exert the necessary educational influence, the convicted person is immediately transferred to a colony in another region. Recently, cases of 'shuffling' convicted persons have generally taken on significant proportions.
As a consequence, no purposeful educational work can be spoken of. Moreover, the relatives of the convicted persons suffer unjustifiably, having to travel to the most distant corners of Ukraine to see their loved ones, spending considerable funds on travel.
Let us cite just one example which, in our opinion, reflects the tendencies existing in the 'educational and humanistic' processes of the Department. Convicted person T. was serving his sentence in the 'notorious' Iziaslav Correctional Colony (No. 31) and belongs to the category of so-called 'malicious violators of the sentence serving regime,' as he was subjected to disciplinary liability about 60 times.
But how did the administration of the institutions where he served his sentence ensure proper educational work with him? The answer is simple—convicted person T. was 'educated' exclusively through penalties and transfers to various colonies.
Thus, convicted person T. began serving his term of imprisonment on 18 January 2005—from the moment of his arrival at the Iziaslav Correctional Colony of the Khmelnytskyi Region (No. 31).
And already on 19 January 2005 (the next day), the first penalty was applied to him, moreover, one of the so-called 'extreme' measures—placement in a disciplinary cell (DIZO).
Two days after T.’s release from the disciplinary cell, on 15 February 2005, a penalty was applied to him in the form of placement in a cell-type premise (PKT) for a period of 3 months.
Materials that would testify to any educational work being conducted with T. are absent from his personal file.
The biased attitude of the administration staff towards T. is also evidenced by the fact that they first used extreme measures of influence (placement in a DIZO and PKT), and only later, on 19 June 2005, was a disciplinary penalty in the form of a warning applied.
Thus, the administration of the Iziaslav Correctional Colony (No. 31) effectively took all measures themselves to provoke T. into inadequate behaviour and the development of a negative attitude towards the institution's personnel.
Similar facts of outright abuse occurred regarding other convicted persons in the Iziaslav Correctional Colony of the Khmelnytskyi Region (No. 31).
As a result, on 14 January 2007, almost all convicted persons of this institution (more than 1,200 people) declared a hunger strike as a sign of protest against the arbitrary imposition of disciplinary penalties, beatings, and humiliating treatment by the personnel, poor nutrition, and degrading treatment.
This event received wide coverage in the press and on television, the consequence of which was mass harassment of the protest participants, including convicted person T. (it should be noted that inspections of this event, conducted by prosecutor's offices of various levels and by the Department, naturally found no violations on the part of the personnel).
After these events, convicted person T. was transferred for further service of his sentence to another institution—Pervomaysk Correctional Colony No. 117 of the Kharkiv Region, since he belonged to the number of persons who expressed disobedience to the shameful treatment of them by the administration of VK-31.
But convicted person T. was not left in peace in this institution either—the imposition of penalties continued both with and without cause. Along with this, the educational measures conducted with T. were limited to holding conversations, mainly regarding additional clarification of the requirements of the current criminal executive legislation (or 'conversations of a preventive nature'), and stating the fact that T. 'had not expressed complaints and applications.'
When all possible measures of punitive influence on convicted person T. were exhausted, the administration of Pervomaysk VK-117, without any publicity or notification of the convicted person himself, suddenly took him away for further service of his sentence to Correctional Colony No. 50 in the Lviv Region.
Perhaps this was to a certain extent caused by the intervention of lawyers and human rights activists in resolving the problems of convicted person T., who filed lawsuits against the actions of the correctional colony administrations to the Pervomaysk and administrative courts of the Kharkiv Region. We still do not have objective data.
This transfer, in its secrecy, was more reminiscent of a military operation to kidnap an intelligence resident of another state. Neither the human rights activists who were caring for the fate of convicted person T., nor his lawyer were made aware that the colony administration had sent materials to the Department to resolve the issue of transferring convicted person T. to another institution, nor of the date and time of his transfer.
Subsequently, we were unable to obtain information regarding the grounds for the transfer. In particular, regarding this matter, specialists from the Kharkiv Human Rights Group sent a letter to the Department of the following content:
15 July 2008
No. 1408Dep/08
To the Head of the State Department of Ukraine
for the Execution of Punishments
Koshchynets V.V.
On 12 June 2008, convicted person T. was transferred from the Pervomaysk Correctional Colony of the Kharkiv Region (No. 117) to VK-50 in the Lviv Region in accordance with the instruction of the State Department of Ukraine for the Execution of Punishments.
In our opinion, this transfer of convicted person T. was carried out without the existence of legal grounds.
The said convicted person at one time served his sentence in Iziaslav VK-31, where he was subjected to beating by fighters of the department's special forces, after which, among other convicted persons, he was transferred to the Pervomaysk Correctional Colony No. 117. Convicted person T. is part of a group of applicants who sent a complaint to the European Court of Human Rights in connection with the events in Iziaslav VK-31.
Lawyers of the Kharkiv Human Rights Group provided assistance to T. in appealing the unlawful actions of the administration of Iziaslav VK-31 and Pervomaysk VK-117 in court (at present, a lawsuit has been filed with the Pervomaysk District Court of the Kharkiv Region and the Higher Administrative Court of Ukraine).
Thus, such a transfer, carried out without any warning, in our opinion, is caused exclusively by the desire of officials of the bodies and institutions for the execution of punishments (including the State Department of Ukraine for the Execution of Punishments) to prevent the establishment of the objective truth in the case regarding the unlawful actions of representatives of the administration of the correctional colonies.
In accordance with Part 3 of Article 93 of the Criminal Executive Code of Ukraine, convicted persons serve the entire term of the sentence, as a rule, in one institution, and their transfer is possible only in exceptional cases, which include: a) ensuring the personal safety of the convicted person; b) facilitating the solving of crimes; c) avoiding the possibility of extraordinary events, since such an approach ensures the most optimal conditions for conducting educational work.
Taking the above into account, we request that you provide an excerpt from the minutes of the meeting of the Appellate Commission of the State Department of Ukraine for the Execution of Punishments, indicating the specific circumstances under which T. cannot be held in VK-117, and the initiators of the transfer of convicted person T. from VK-117 to VK-50.
Arkady Bushchenko,
lawyer,
leading legal expert
of the Legal Aid Centre
The response received to this letter is striking in its brevity (we will quote it in full): 'The State Department of Ukraine for the Execution of Punishments has carefully considered the appeal regarding the unjustified (in your opinion, without an urgent need for it) transfer of convicted person T. We inform you that the transfer of the convicted person was carried out exclusively on the basis of criminal executive legislation and departmental regulatory legal acts of the Department.' Signed—Head of Department O.H. Dvoinos, outgoing No. 17-4997 dated 4 August 2008.
As we can see, there is no mention of the documents we requested. Also striking is the circumstance that the Department so self-confidently evaluates its own actions—it performed the transfer itself, and then evaluated itself that everything corresponds to current legislation.
We have almost no doubt that Correctional Colony No. 50 in the Lviv Region will not be the last place where convicted person T. is held. As practice shows, individuals who, from the first days of their stay in places of deprivation of liberty, 'do not please' representatives of the administration, are practically deprived of the opportunity to reform, because for them, punishment and only punishment is used in the future, although this is refuted by Department officials at various public events.
In this regard, I consider it appropriate to remind the employees of the State Criminal Executive Service of certain provisions of current legislation. Thus, in accordance with Article 2 of the Law of Ukraine 'On the State Criminal Executive Service of Ukraine,' the fundamental principles of the activity of the State Criminal Executive Service of Ukraine (hereinafter—the SCES) among others are:
1) legality;
2) respect for and observance of the rights and freedoms of man and citizen;
3) humanism.
The activities of the SCES are also conducted on the basis of respect for the rights and freedoms of man and citizen. SCES personnel are obliged to respect human dignity and to show humane treatment towards them.
Article 3 of the aforementioned Law provides that the legal basis for the activity of the State Criminal Executive Service of Ukraine is the Constitution of Ukraine, this and other laws of Ukraine, acts of the President of Ukraine and the Cabinet of Ministers of Ukraine, current international treaties, the consent to be bound by which is provided by the Verkhovna Rada of Ukraine, as well as regulatory legal acts of the central executive body for the execution of punishments issued in accordance with them.
Part 2 of Article 50 of the Criminal Code of Ukraine (hereinafter—the Criminal Code of Ukraine) establishes that one of the goals of criminal punishment is the rehabilitation of convicted persons.
An explanation of the term 'rehabilitation' is provided in Part 1 of Article 6 of the Criminal Executive Code of Ukraine (hereinafter—the CEC of Ukraine).
Rehabilitation of a convicted person is a process of positive changes that occur in their personality and create within them a readiness for self-directed law-abiding behaviour.
It is precisely the achievement of rehabilitation, as follows from Article 1 of the CEC of Ukraine, that the activities of the SCES should be directed towards.
The socio-humanitarian orientation of the SCES’s activities is also evidenced by data posted on the official website of the State Department of Ukraine for the Execution of Punishments, which emphasises that the main goal of the criminal executive service is not to punish, but to lead convicted persons to the path of repentance, conducting in-depth educational and psychological work.
But for some reason, words diverge from deeds.
The example given with convicted person T. is not an isolated one. Every month, 3 to 8 convicted persons are transferred from Pervomaysk VK-117 to other institutions—those who either 'could not be managed' or who might in some way damage the colony's image (for example, in a case where a convicted person sustained an injury in the colony from other convicted persons, which was registered and documented in a local medical facility as an 'exacerbation of a chronic disease').
And what 'continuity' of the educational process can be spoken of in such cases? It seems, none at all.
Changing the state of affairs is possible only by ensuring proper control on the part of relevant bodies over the activity of the Department, as well as by incorporating clear criteria for the transfer of convicted persons from one institution to another and the grounds for it into current legislation.