Problems of the Ukrainian penal enforcement system regarding the rights of convicts

1. Introduction
The sphere of application of criminal sentences has always been and remains one of the most vulnerable areas in the life of society and state policy. And this is not surprising, since the main content of punishment is the application of coercion and, accordingly, legal restrictions to an individual. It is precisely in this sphere of activity that the risk of abuse towards an individual who has been subjected to legal restrictions, and thus deprived of a certain degree of protection, is very high. Representatives of various state and public organisations, both in Ukraine and among international non-governmental institutions, have repeatedly drawn attention to these facts.

In 2003, a new Penal Executive Code was adopted in Ukraine, which was intended to regulate existing penal enforcement legal relations. In addition, the normative act was supposed to provide a new impetus to legal relations, as the actual state of affairs in the sphere of execution and service of criminal sentences and the obligations undertaken by Ukraine under numerous international treaties required this.

The Code, and following it a whole series of other laws and subordinate normative acts, were adopted.

At this time, when a certain law-enforcement practice and experience of regulating and using the indicated normative acts have already formed, it is possible to state with confidence – the new normative legal acts in the sphere of execution of criminal sentences have proven to be ineffective, contradictory, and such that do not meet the requirements of international standards of treatment of convicts and acts on the prevention of torture, and have effectively not fulfilled the expectations placed upon them.

Therefore, there is a real need to identify problematic aspects, formulate them, and make efforts to eliminate those normative and practical institutions that make penal enforcement legal relations a medieval atavism and a sphere where inhuman treatment, torture, slavery, and the deprivation of individuals of elementary rights and dignity have a fertile ground.

The list provided below does not claim to be exhaustive.

2. Definition of problems in the sphere of execution of criminal sentences

The penal enforcement and accompanying legal relations that have formed during the period of the new penal enforcement legislation allow us to identify some problematic points and divide them into:

- problems of a conceptual nature and

- problems of a practical (applied) nature.

The former concern fundamental provisions that postulate the legal status of convicts and persons who have found themselves in places of pre-trial detention, the rules of the presumption of innocence, and analogous norms of legislation. They are of decisive importance for granting an individual a certain complex of rights and determining the main directions of state bodies' activities in the sphere of applying sentences and other restrictive measures.

The second group of problematic points emerged, or rather formed, in the process of executing criminal sentences and applying legal restrictions. These institutions were created thanks to those imperfections contained in the norms of penal executive law.

2.1. Problems of a conceptual nature.
Problems of the legal technique of some normative acts, the procedures for their adoption, and the unsatisfactory state of the conceptual apparatus of the current penal executive legislation. The Internal Regulations of Penal Enforcement Institutions (IR) is a document in which the norms of the PEC of Ukraine are concretised and receive further detail. This act is one of the main ones in the work of bodies and institutions for the execution of sentences, as it establishes the “rules of the game” both for the institution’s personnel and for convicts. And therefore, this act cannot be formulated and adopted by one of the parties to the execution-service process of punishment. Because in such a case, abuse is inevitable. It would be appropriate for the Internal Regulations to be adopted by the Cabinet of Ministers of Ukraine.

Normative acts, in particular the Criminal Code of Ukraine, when defining such a crime as torture, must take into account the specificity of places of deprivation of liberty, since these places create a fertile ground for torture. This is explained by the fact that convicts, as certain legal restrictions are applied to them, are a vulnerable and unprotected category of persons. Therefore, the feature of the application of torture in places of deprivation of liberty must become a qualifying one.

Considering the specificity of the national legal system, for more effective counteraction to torture against persons who are convicts and persons who are in other places of actual deprivation of liberty, it is necessary to define the concept of “deprivation of liberty” at the legislative level, as well as to consolidate and differentiate all possible places of deprivation, restriction of liberty, and other places where persons are held, regarding whom certain measures of state coercion or restrictions have been chosen.

Taking into account the obligations that Ukraine undertook upon accession to numerous international organisations, it is necessary to introduce an institution of international control over the state’s fulfilment of these obligations and to establish a mechanism for the implementation of such control. First of all, international control is necessary in the sphere of executing criminal sentences and ensuring the rights of persons who are held in places of actual restriction or deprivation of liberty and convicts.


Realisation of the principle of innocence. Article 62 of the Constitution of Ukraine determines that a person is considered innocent of committing a crime and cannot be subjected to a criminal sentence until their guilt is proven in a legal manner and established by a court’s guilty verdict. If a person is innocent, then the treatment of them should not differ from the treatment of any free person against whom there are no criminal judicial procedures.

In fact, in Ukraine, the realisation of this principle is not ensured, since persons who have the status of a defendant or suspect are in conditions close to deprivation of liberty, and most of the norms that relate to deprivation of liberty and the status of a convicted person apply to them.


The convict is not a subject of penal enforcement legal relations. The point is that, today, penal executive legislation contains provisions according to which the convict acts as a necessary attribute of penal enforcement activity, but an attribute that has no independent significance. That is, without a convict, the activity of executing sentences is impossible. But a convict is, first and foremost, a passive subject who must be subjected to punitive influence, and with that, their significance and functions end. Only after release do they acquire the full volume of legal personality. Such a conclusion can be reached if one studies the list of rights, duties, and prohibitions that apply to convicts.

Low awareness of convicts regarding their rights and the paths and mechanisms for their realisation. The penal enforcement system was and remains one of the most “closed” systems of state bodies. This closure is connected with and expressed not only in the specificity of the activity and certain institutions. It has entailed a certain “autonomy” of the system and formed a state within a state. Thus, many normative acts adopted by the highest executive body in the sphere of sentence execution have the stamp “top secret” or “for official use,” while others are simply not published. Such a state of affairs leads to the fact that convicts do not have the opportunity to familiarise themselves with normative acts and, accordingly, to take advantage of the meagre arsenal of rights they have, even though the law secures such a right for them.

The indicated situation leads to the fact that convicts do not know how to use their rights. This is not surprising, since if a person does not know about their rights, they, of course, do not know how to use them. These rights are not accessible to the convict both in view of the lack of awareness and in view of the misunderstanding of their meaning and the legal consequences that the existence and possibility of realising certain rights entail. The low level of culture of Ukrainian society as a whole and the society of convicts in particular does not contribute to the ability to use rights.

Punishment by conditions of detention. The national practice of executing criminal sentences, in particular punishment in the form of deprivation of liberty, puts at the forefront the creation of such conditions that, without any doubt, give the convict an understanding of where they have ended up and what place they occupy in society from the moment of the start of serving the sentence. In penal enforcement institutions, material and living conditions of detention are created that do not contribute to the person’s awareness of their own dignity and do not orient the person towards respect for themselves and those around them. A considerable part of the punitive influence of deprivation of liberty is contained precisely in the conditions of detention. Such a situation contradicts the requirement of part 2 of Article 102 of the PEC of Ukraine, which states that the regime in colonies must reduce to a minimum the difference between conditions of life in the colony and in freedom, which should contribute to increasing the convict’s responsibility for their behaviour and the awareness of human dignity.

Substitution/duplication of court functions when determining the security level of a colony for a convict. The Department’s normative acts dedicated to determining the security level of a colony for convicts and the very concept of defining colonies create conditions for the substitution of judicial functions by Regional Commissions. The named commissions carry out the distribution of convicts by type of PEI (Penal Enforcement Institution).

Proceeding from the content of the acts regulating the distribution of convicts, it is possible to conclude that the criteria by which the distribution of convicts by type of PEI is carried out are legal in nature (the gravity of the committed crime, the presence of previous criminal experience, or the experience of serving a sentence). The imperfection of the Department’s acts creates conditions for the duplication of court functions by the commissions, which is embodied in the commission’s assessment of the convict’s personality, aggravating and mitigating circumstances, etc. The practice of distributing convicts confirms this thesis. Therefore, it is necessary to formulate the regulation on the distribution of convicts in such a way as to avoid the possibility of evaluative considerations influencing the distribution of the convict.

2.2. Problems of a practical (applied) nature.
The existence and activity of special units. The Law of Ukraine “On the State Penal Enforcement Service of Ukraine” provides that the State Department of Ukraine for the Execution of Punishments has militarised formations. But neither this act nor other normative acts regulating activity in the sphere of sentence execution provide for the possibility of intervention in penal enforcement legal relations by so-called rapid response groups. Perhaps the existence of such units can be justified by the need for truly rapid reaction to terrorist acts or the action of criminal formations, but their rapid reaction aimed at beating convicts cannot be explained or justified.

The cases of turning to the “help” of rapid response groups in instances of “taming” convicts who express dissatisfaction with the conditions of detention or attempt to defend their rights are distinguished by the greatest cynicism. Moreover, such a practice contradicts the requirements of international normative legal acts, which are part of the national legislation of Ukraine.

Calculation of the term of serving a sentence. The general rule for the end of the term of serving a sentence and the release of convicts is the rule according to which the convict is released in the first half of the last day of the term of serving the sentence. Obviously, if it is a question of a certain term of punishment determined by the court, then its end comes when the corresponding number of days that make up the term established by the verdict (in months, years, etc.) is completed. The provision is clear and explicit. But for incomprehensible reasons, in practice, a situation has developed when a convict was released 1 day later, because employees of the PEI calculated the term of punishment according to the principle – the end of the term on the same day as its beginning. Such a practice leads to the fact that the rights of all convicts without exception who are serving a sentence in the form of deprivation of liberty are violated.

Furthermore, keeping a person for one day without sufficient grounds for this, and all the more so in a PEI, is a constituent element of the crime provided for by Article 146 of the Criminal Code of Ukraine. According to Article 62 of the Constitution of Ukraine, similar situations entail the possibility of collecting sums of compensation for moral damages from the state.

Ensuring the right to legal assistance. The PEC of Ukraine declares for the convict the possibility of using legal assistance, and moreover, secures this provision among the rights of the convict. And although the code does not contain direct restrictions regarding the realisation of the named right, in practice there are many ways of obstructing a convict in using this right. One example is placing the convict in a disciplinary isolator and, accordingly, not granting them visits with a lawyer during this time.

Change in conditions of detention for convicts. According to the current penal executive law of Ukraine, a change in the conditions of detention of convicts occurs in two variants. The first is a change in the conditions of detention within one colony, and a change in the conditions of detention by way of transfer to another colony.

In accordance with the possibilities that the law provides, a change in the conditions of detention inside an institution is possible only in the form of permission to additionally spend a certain amount of money (or the cancellation of such a possibility) and transfer to another section. The penal enforcement legislation does not contain criteria that condition the possibility of transfer and a sequential algorithm of actions of the institution’s officials. Such a normative vacuum leaves much room for abuse on the part of the officials and employees of the PEI. Moreover, regarding reinforced control sections, in which a regime analogous to the maximum security level is established, normative acts ambiguously regulate from which sections and for what a convict can be transferred here, and also the term of the convict’s stay in such a section is made dependent on the fulfilment of an individual work programme with the convict. What an individual programme is and what its content consists of is known in general only to some categories of PEI officials. This document depends exclusively on the will of the PEI officials.

Social rehabilitation sections, which are perhaps the most desirable for convicts, exist in far from all colonies. Such a state of things makes it impossible for a large number of convicts to get into them, because if such a section does not exist in the colony, then even if the person deserves a transfer to a social rehabilitation section, they will not be able to get there, as for this, a transfer to a colony of another security level would be necessary, and this is already a completely different institution of penal executive law.

It should be noted that it is impossible to consider placement in a PKT (chamber-type premises) as a change in the conditions of detention.

The only guideline in solving the issue regarding the transfer of convicts from one section to another is the methodical recommendations at the disposal of the Department’s employees. But such an act has, first of all, a recommendatory character, and secondly, it has methodical significance, i.e., it defines the methodological foundations for determining this or that type of section.

A similar situation exists with a change in the conditions of detention by way of transfer to colonies with another security level. The legislator mentions that such transfers are carried out with the participation of the Department’s Appeals Commission, but the legislation does not contain a clear and consistent procedure for transfer. All the more so, the grounds for such transfers are not indicated. Only general and very subjective provisions about the convict’s behaviour and their attitude to work are formulated. But the perception of the convict’s behaviour by PEI employees can be very different and connected with different factors. Therefore, the transfer of convicts will have a subjective colour.

Problems of applying disciplinary responsibility measures to convicts, defining malicious violations of the sentence-serving regime, and criminal responsibility of convicts for malicious disobedience to the lawful requirements of the PEI administration (Art. 391 of the Criminal Code).

The application of measures of encouragement and penalties to convicts is one of the means of ensuring the regime and a fairly effective mechanism of influence on the convict. This influence consists not only in the fact that offenders bear responsibility, and convicts who have shown positive behaviour are rewarded. Another function that disciplinary practice performs is the manipulation of convicts. The system of penalties and rewards allows creating for convicts such conditions as are most convenient for the PEI administration.

In addition, the mechanism of applying rewards and penalties has many shortcomings that make the application of these measures unpredictable and, even, unexpected. For example, the legislator does not differentiate the powers of the head and their deputy regarding the application of measures of encouragement and penalties.

The wording of Article 133 of the PEC of Ukraine is unsatisfactory from the point of view of legal technique and the theoretical filling of this concept. Defining a malicious violator of the regime as a person who has a certain set of characteristics and disciplinary offences is a typical example of so-called “stigmatisation” of a person. That is, the legislator is not talking about the person’s actions, but about the person themselves, and effectively endows such a person with a certain “status,” a “title” of malicious violator of the regime. Such a situation can lead to the fact that the label of “malicious violator of the regime” will never again be “removed” from the convict. The indicated state of affairs cannot be recognised as satisfactory, proceeding from the doctrine of punishments and penalties that are imposed for violations and which, so to speak, redeem the guilt and actions of the guilty person, “removing” the guilt from them.

Current criminal legislation provides for the criminal responsibility of convicts for malicious disobedience to the requirements of the PEI administration. But the disposition of this article of the Criminal Code is formulated in such a way that, under its effect, one can effectively fit any behaviour of a convict, provided that disciplinary prejudice exists. Article 391 of the Criminal Code contains such a provision: “...or other opposition to the administration in the lawful exercise of its functions by a person serving a sentence in the form of restriction of liberty or in the form of deprivation of liberty, if this person, for violation of the requirements of the regime of serving the sentence, was subjected during the year to a penalty in the form of transfer to chamber-type premises (solitary confinement) or was transferred to a more rigorous regime of serving the sentence...” As can be seen, any behaviour of a convict can be viewed as malicious disobedience to the requirements of the administration.

Thus, the existence of Art. 391 of the Criminal Code makes it an instrument for manipulating convicts and creates the possibility for extending the convict’s term of serving the sentence.

Activity of supervisory commissions. Supervisory commissions are a body of the public that exercises interaction and control over the activity of PEIs.

But their activity has a whole series of shortcomings that negate all the functions of the commission. In particular, in settlements, supervisory commissions (hereinafter – SC) are formed under state administrations. The head of the SC does not have the right to visit the PEI without hindrance. Thus, they do not have the right to exercise their main function of control.

Considering such a state, it is possible to assert that the SC is not a body of public control over the activity of PEIs.

Proceeding from the sense of creating the SC, they should rather be viewed as a body of social patronage. Their functions and tasks should change and be directed towards assisting convicts during the service of the sentence and their social adaptation after release. At the legislative level, there is a lack of certainty in the question of the subordination of the SC and in the question of the effectiveness and correctness of their activity.

To increase the effectiveness of public control, it is necessary to carry out a minimum of organisational actions:

- SCs should not agree to motions for UDR (Unconditional Early Release), but only to refusals for UDR;

- The SC should have the authority regarding relations with prosecutor’s office bodies in the sphere of supervision over the execution of sentences;

- It is necessary to provide for the necessity of agreeing on the transfer of convicts to other colonies with the SC.

- Establish a procedure for agreement with the SC of local normative acts;

- Empower the SC with the authority regarding the sending of inquiries about the observance of requirements and recommendations of the CPT (Committee for the Prevention of Torture);

- The formation of SCs should not be connected with the inclusion of former employees of law enforcement bodies and the court in their composition;

- SCs should not be financed by the state and be dependent on state power bodies.

Labour of convicts. Labour cannot be slave labour and must be paid and not contain signs of punishment and humiliation. That is, a convict cannot be punished with labour.

The penal executive legislation of Ukraine leaves very rich room for abuse on the part of the administration of penal enforcement institutions regarding the rights of convicts to labour and to a decent level of its payment. The practice of executing sentences confirms this thesis. In colonies, there are not rare cases of illegal manipulation with the labour of convicts. An example can be cases when the documentary registration of the convicts’ labour does not correspond to real circumstances. Such a situation occurs when a brigade of 50 people is led out to work, and work orders for the performance of certain work are drawn up for 5 people. Effectively, this means that 45 people performed forced, unpaid work, which in general bears signs of slave labour. For the convict, this means that wages are not accrued to them, and their length of service can also be called into question.

Medical and social-living provision of convicts. These institutions are regulated by law very skimpily, which allows practical PEI employees to remain within the limits of the law without any effort and at the same time not provide the convict even with the minimum necessary for holding a person in conditions of physical isolation.

Establishing norms on medical service, it would be appropriate to consolidate responsibility for bringing a convict to death.

Beyond what has been named, it is desirable to create such a medical service that would not have subordination to the PEI administration.

Violation of social-economic rights of convicts. The Constitution of Ukraine establishes inviolable social and economic rights for the citizens of Ukraine. Convicts retain the status of citizens of Ukraine and therefore they enjoy the corresponding rights, with consideration of the restrictions that arise from the court verdict.

The indicated provisions of the law and their possible restrictions, as a rule, do not affect the main economic and social rights of convicts. Thus, if a convict has certain specific characteristics and is endowed with special statuses (for example, the status of a Chernobyl liquidator, pensioner, etc.), they should retain these statuses even while serving the sentence. And this is understandable, since the punishment extends to a specific crime and has clearly defined boundaries.

But the practice of executing sentences testifies to the contrary. Convicts effectively do not have the opportunity to use the preferences that this or that status provides. Or they cannot use the advantages of the corresponding status, proceeding from the absence of a mechanism for the realisation of such a status in conditions of deprivation of liberty. A convict cannot receive payments that are due to them as a Chernobyl liquidator, because penal enforcement institutions do not cooperate with the corresponding social security bodies.

A similar situation exists in relation to the registration of old-age pensions. Even such an, it would seem, automatic procedure cannot be realised in conditions of deprivation of liberty. The Department is not a payer of contributions to the pension fund and other social insurance funds, and therefore convicts who have the right to pension provision cannot use this right, because in the absence of deductions to such funds, the convict does not acquire the status of an insured person.

With analogous difficulties, the convict collides even after release from serving the sentence. If the convict worked during the service of the sentence, and the colony did not pay contributions to the pension fund, then such a convict does not acquire the right to receive a pension.

Incomprehensible and inconsistent is the provision of the PEC of Ukraine, which says that the regime must ensure the legal interests of convicts. Considering that legal interests are such benefits that correspond to current legislation and the achievement of which a person could plead, but they are not provided for by the obligation of another subject to facilitate such achievement, it is hard to imagine in what manner the regime can ensure such legal interests. An example can serve the entry of convicts into marital relations. For the realisation of this “desire,” the convict must personally appear before the civil registry office bodies and conclude a marriage in the presence of the corresponding official. Such a state of things testifies to the fact that the convict is effectively deprived of the possibility of concluding a marriage, and, accordingly, the regime does not ensure the convict the possibility of realising an entirely legal interest regarding the conclusion of a marriage. Thus, penal executive legislation contains a norm that is pre-emptively unfulfillable.

Appeal by convicts of decisions and acts of the State Department’s bodies. Today, the right of convicts to appeal the actions and decisions of the bodies and institutions of the penal enforcement system is provided for by several norms of current penal executive legislation, but a clear procedure, unfortunately, does not exist. The legislator, in particular, defines the procedure for appealing the decisions of Regional Commissions regarding the distribution of convicts. But this regulation is so inconsistent and unclear, and also has such restrictions, that appealing the commission’s decision becomes effectively impossible.

As concerns other decisions of the PES (Penal Enforcement Service) bodies, their appeal in general has a very dubious character, since the mechanism of the realisation of such an appeal is completely obstructed.

With the adoption of the Code of Administrative Judiciary of Ukraine, it is obvious that this category of cases should be reviewed precisely by administrative courts, but today there is no such judicial practice, and the question regarding the jurisdiction of cases on the complaints of convicts about the actions of PES bodies and institutions is open.

Other violations of the rights of convicts. Among other violations of the rights of convicts, significant are the following:

- Equal conditions of detention for men and women convicted to life imprisonment, although in general the difference in the detention of these categories of convicts is significant. Convicted women serve this type of sentence in colonies of the medium security level, men in colonies of the maximum level, and therefore the difference should correspond to the security level of the corresponding colony;

- The introduction of restrictions on the number of parcels and transfers for convicts by the decision of the CCU (Constitutional Court of Ukraine). The decision of the CCU effectively cancelled the law by which the restrictions on the number of parcels and transfers for convicts were removed;

- Administrative penalties are performed in the order and regime of criminal sentences, which effectively equates the conditions in them to conditions in correctional colonies. This contradicts the doctrine of differentiating types of legal responsibility by the degree of gravity of the committed offence and those legal relations that have become the object of encroachments;

- Correctional centres are created on the basis of settlement colonies, therefore they effectively preserved all the features of correctional colonies;

- Specificity of the activity of PEI officials and employees. These categories of workers are the most vulnerable category of workers, who are most significantly subjected to professional deformation. Therefore, it is necessary periodically (for example, once every 2-3 years) to conduct re-attestation of practical PEI workers on the subject of professional suitability and provide professional, medical, and psychological assistance to persons who have become victims of professional deformation;

Concluding provisions and paths for eliminating the identified shortcomings.

The formulated problematic and contradictory moments of the penal executive legislation must be eliminated.

The majority of the named shortcomings are the result of the systemic and purposeful activity of the corresponding bodies and institutions. Thus, and one of the decisive moments in solving the problems are the corresponding personnel changes both in the composition of the Department’s central apparatus and in specific penal enforcement institutions.

The next measure, which must undoubtedly take place, is the introduction of changes to the penal executive legislation. At this time, there is already a very rich practice of applying the norms of the PEL (Penal Executive Legislation), which has identified a whole series of shortcomings, and also made it possible to determine the paths for their elimination. Accordingly, with consideration of practical experience, it is necessary to introduce such changes into the legislation that will help to improve the process of execution-service of sentences, make it more accessible and predictable.

It is necessary to adjust the system of real public and international control over the activity of PEIs. Make such control working and effective. For this, it is necessary to determine the procedure for its exercise, powers, sources of financing, as well as the responsibility of PES officials for the failure to perform the lawful requirements of public controllers. It is important to have the independence of public control from state bodies of power.

And the last, but almost the most important, is the change of the paradigm, the concept of punishment and the order and conditions of its service. It is a question of forming the image of the convict as a person who has made a mistake, but not a hopeless one. It is necessary to add efforts to the destruction of the encouragement of the subculture of convicts as persons who have some romantic and bitter and unjust fate. The convict needs to be treated as a normal person who is temporarily in places of deprivation of liberty, has honour and dignity, and will soon be released. Accordingly, the system of bodies should not bear a punitive-camp colour, but be institutions that ensure the physical isolation of convicts and try, first and foremost, not to harm the person with this isolation.