The transfer of convicts from one institution to another of the same type under exceptional circumstances

According to Article 93 of the Penal Executive Code of Ukraine (hereinafter referred to as the PEC), convicts generally serve their entire sentence in one institution. This legislative definition is a positive step aimed at ensuring the protection of convicts' rights, as, during their time in a single institution, a convict becomes accustomed to the requirements placed upon them, acquires a trade, and may continue their general and vocational education. The administration of the correctional facility has the opportunity to study the convict’s personality comprehensively, apply an individual programme of educational influence, and implement other measures to facilitate subsequent social adaptation after release. Transferring a convict to another correctional institution, even one of the same security level, interrupts (stops) this process and forces them to start over. Such a situation leads to significant losses of a psycho-pedagogical, material, financial, and organisational nature.

Part 2 of Article 93 of the PEC provides that the transfer of a convict for further service of a sentence from one correctional or educational colony to another is permitted under exceptional circumstances, and not all of them, but only those that hinder the further presence of the convict in that correctional or educational colony. The procedure for transferring convicts under this provision of the law should be determined by the normative legal acts of the State Department of Ukraine for the Execution of Punishments (hereinafter – the Department).

Legislation does not provide an explanation of what is meant by “exceptional circumstances.” To date, there is not a single departmental normative document that would detail the grounds for and the procedure for reviewing and resolving issues of transferring convicts from one institution to another. Departmental acts only establish the following:

– convicts sent in accordance with part two of article 93 of the PEC, having been transferred from one correctional or educational colony to another, are dispatched (…) based on the Department’s personal orders for the transfer of persons sentenced to deprivation of liberty (cl. 3.6 of the Instruction on the procedure for the distribution, direction, and transfer of persons sentenced to deprivation of liberty, approved by the Order of the State Department of Ukraine for the Execution of Punishments of 16 December 2003, No. 261);

– the main tasks of the Appeals Commission are: reviewing issues regarding the transfer of convicts from one institution to another in accordance with the requirements of part two of article 93 of the Penal Executive Code and other laws of Ukraine (cl. 2 of the Regulations on the Appeals Commission of the State Department of Ukraine for the Execution of Punishments regarding the distribution, direction, and transfer for serving sentences of persons sentenced to deprivation of liberty, approved by the Order of the State Department of Ukraine for the Execution of Punishments of 16 December 2003, No. 261).

However, it is hardly possible to consider such provisions a “procedure for transferring convicts.”

It seems as though the Department benefits from the absence of a legal framework governing convict transfers. Under these conditions, the administration of a correctional colony, citing “operational circumstances,” relationships between convicts, the conduct of an inquiry, or the initiation of a criminal case, etc., can conclude at any time that it is necessary to transfer any convict to another correctional institution.

The current state of affairs, where the composition of “exceptional circumstances” is determined at the discretion of the institution’s administration, is unacceptable because the administration itself “can conclude that there is a necessity for a transfer,” i.e., determine the grounds for the transfer. The legal uncertainty regarding the grounds for transferring convicts creates prerequisites for abuse and human rights violations, as well as the ability, in “necessary” cases, to maximally worsen the situation of convicts by constantly moving them from one colony to another. And practice indicates that such cases are not isolated.

The procedure for reviewing these issues in the Appeals Commission is also not outlined. As follows from the Regulations on the Appeals Commission of the Department, the decision on a transfer must be made at a meeting of the commission (since precisely this form of their activity is enshrined in the Regulations), after a thorough study of the submitted materials. But the list of materials that must be submitted for consideration by the Appeals Commission is also not defined. Considering the opinion of the convict themselves is not provided for. The Regulations contain only the procedure for considering appeals from convicts, citizens, organisations, etc.

Due to the lack of proper regulation of transfer issues, a convict for whom a decision on transfer to another institution has been made, their relatives, and other interested persons are, firstly, not informed about the initiation of such a review; secondly, they have no opportunity to influence this process; and thirdly, they are not familiarised with the decision taken, which deprives them of the possibility to appeal it (according to the Regulations, only the applicant is informed in writing of the decision made by the Appeals Commission, and it is understood that the convict themselves practically never applies with a request for transfer to another institution due to “operational circumstances”). This is a direct violation of Rule 17.3 of the European Prison Rules, according to which “...the prisoner’s opinion should be sought concerning the originally assigned place of detention and any other transfer from one penitentiary institution to another.”

Convicts regarding whom a decision on transfer has been made, as a rule, find out about it only upon arrival at another institution, which also negatively affects their mental state. No less do their relatives suffer, as they also receive information about the convict's whereabouts from the day of arrival at the new institution. At the same time, their right to appeal the decisions of the Appeals Commission is never explained to them. And this is a direct violation of the Constitution of Ukraine, according to which everyone has the right to judicial protection and to timely receipt of information about themselves and their family members.

The possibility of such an appeal is established by the Regulations. And although the procedure for appealing established therein contradicts current legislation, as it provides exclusively for an extrajudicial procedure, without a single mention of applying to a court (“...cl. 11. Complaints regarding decisions of the Appeals Commission are submitted for consideration to the Head of the Department. 12. A decision of the Appeals Commission may be cancelled by the Head of the Department and sent for re-examination...”), neither the convict nor their relatives are even informed of this.

It is also necessary to draw attention to the fact that the “secrecy” of the activities of both the Regional and Appeals Commissions (the majority of citizens have no information at all that such bodies exist) creates conditions for “cutting corners” or generally failing to adhere to even the existing procedure, and also makes it impossible to respond promptly to a change in the place of sentence service. According to the established practice, it is impossible to obtain any information from the Department regarding the grounds for the transfer of this or that convict. Copies of the minutes of the Appeals Commission’s meetings are not issued with reference to the “confidential nature of the information contained in them.” The issuance of extracts from these protocols or even familiarisation with them is not provided for.

Thus, the existing procedure for transfer from one institution to another resembles the former GULAG during times of maximum secrecy of the penal enforcement system. Changing the state of affairs is possible only by ensuring proper control by the relevant bodies over the Department's activities, as well as by introducing clear grounds and a procedure for the transfer of convicts from one institution to another into the current legislation.