Without the Right of Appeal

We usually recall the penal system only when we hear about prisoner protests or that some of them have passed away. Until then, there is no particular interest in events on the other side of the bars. And, with the silent consent of people who, deep down, are certain they will never end up ‘on the other side’, places of imprisonment continue to remain territories of total lawlessness. Although their inhabitants should be punished solely by the very fact of the deprivation of liberty,
In 2002, a new Criminal Executive Code was adopted. Already today, experts note that the new regulatory acts in the sphere of penal execution have not lived up to expectations, proving ineffective and contradictory, failing to meet the requirements of international standards for the treatment of convicts. This is discussed, in particular, in the articles by human rights activists included in the recently published collection ‘Problems of Ensuring the Rights of Convicts in the Criminal Executive System of Ukraine’, edited by Yevhen Zakharov, head of the Kharkiv Human Rights Group.
A significant part of the punitive impact of imprisonment lies precisely in the conditions of detention, human rights activists note. Domestic practice in executing criminal punishments, particularly punishment in the form of imprisonment, prioritises creating conditions that unequivocally let the convict know where they have ended up and what their place is in society today. In criminal executive institutions, moral and living conditions are created which, to put it mildly, do not contribute to preserving the convicts’ sense of dignity. They can be described, without exaggeration, as humiliating. Meanwhile, this state of affairs is a violation of the requirements of Article 102 of the Criminal Executive Code of Ukraine, which states that the regime should minimise the difference between living conditions in the colony and at liberty.
The creation of such conditions can only be explained by a purposeful influence on the individual with the aim of demoralising them, making them spineless and obedient. It is as if the main goal of punishment is the desire to humiliate the person and make them feel guilty for life. As the authors of the study believe, the creation of such conditions in criminal executive institutions actually discredits the goals of punishment: correction and resocialisation. A person who has served a certain term in inhumane conditions is unlikely to be corrected and finds it quite difficult to return to a normal life in society. Thus, the main, if not the only, direction of domestic criminal executive law is the execution of the sentence.
Among the reasons for this state of affairs in Ukraine’s criminal executive system, experts primarily cite the state’s failure to fulfil its obligations regarding the demilitarisation of the system and its transfer to the Ministry of Justice.
According to Opinion No. 190 (1995) of the Parliamentary Assembly of the Council of Europe regarding Ukraine’s application for membership of the Council of Europe, Ukraine was supposed to transfer responsibility for the management of the penitentiary system and the execution of court decisions in the form of court sentences to the Ministry of Justice by the end of 1998.
Subsequently, statements began to appear from various officials (from the head of the Verkhovna Rada Committee on Legislative Support of Law Enforcement, the Parliamentary Commissioner for Human Rights, to the leadership of the Department for the Execution of Punishments) that by the very fact of removing the criminal executive service from the structure of the Ministry of Internal Affairs, Ukraine had fulfilled its obligations. PACE did not understand us, calling on us to fulfil our promise. Instead, in 2006, a Cabinet of Ministers resolution was issued stating that the activities of the State Department of Ukraine for the Execution of Punishments are directed and coordinated through the Ministry of Justice. It is difficult to say what this actually means. After all, according to the Law ‘On the State Criminal Executive Service’, the Department is a central executive body for matters of the execution of punishments. That is, by status, it is equal to the Ministry of Justice; there is no subordination...
During the Soviet era, the criminal executive system effectively used the slave labour of convicts and was a significant component of the Soviet economy. The largest projects—the construction of the Baikal-Amur Mainline (in the thirties and seventies), the White Sea-Baltic and Volga-Don canals, the construction of a tunnel between the mainland and Sakhalin Island—were primarily the work of prisoners. Researchers claim that almost 20% of the gross national product was created by the criminal executive system. That is, such enterprises produced a fifth of the goods used by society. In the modern peculiar market economy, there was no place for the enterprises of the criminal executive system. Whether this is good or bad, the state has lost interest in this aspect of the functioning of the criminal executive system, leaving only the function of executing sentences involving the deprivation of liberty.
Criminal Liability for Disciplinary Offences
The corpus delicti provided for by Article 391 of the Criminal Code of Ukraine establishes criminal liability for malicious disobedience to the requirements of the administration of a correctional institution: ‘Malicious disobedience to the requirements of the administration of a correctional institution or other opposition to the administration in the legal exercise of its functions by a person serving a punishment in the form of restraint of liberty or imprisonment, if this person was subjected to a penalty in the form of transfer to a chamber-type premises (solitary confinement cell) or transferred to a stricter regime of serving the punishment during the year for violation of the requirements of the regime of serving the punishment’.
Such a disposition of the norm directly contradicts the proclaimed principle of the new Criminal Code of Ukraine—the refusal to point to administrative prejudice as a condition for criminal liability. Previously, under the old Criminal Code, this led to the fact that administrative offences committed repeatedly were automatically recognised as crimes. Thus, there occurred an absolutely unjustified criminalisation of certain acts. And now, the article of the new Criminal Code, despite the proclaimed decriminalisation, once again contains a reference to administrative (disciplinary) prejudice as a necessary condition for criminal liability. That is, a condition for prosecuting a convict under Article 391 of the Criminal Code is the fact that a penalty in the form of placement in a solitary confinement cell or a disciplinary isolation ward has been applied to the convict for actions aimed at avoiding further service of the punishment. At the same time, there are many cases where people who were subjected to such punishment for other reasons are accused. And the prosecution and the court often disregard this circumstance. Most often, for the court, the very fact of placing a prisoner in a solitary confinement cell is sufficient to consider the application of Article 391 of the Criminal Code lawful, which, of course, is incorrect.
A condition for the application of the article is the convict receiving two penalties. Quite often, these penalties are imposed for minor violations, such as a bed not being made according to the standard. Human rights activists believe it is inadequate to consider such misconduct sufficient to qualify a convict’s actions as a criminal offence, for which one can be given three years of imprisonment. They emphasise that many penalties are artificial in nature and are applied only to formally meet the conditions necessary to charge a person under this article of the Criminal Code. Thus, very often, bringing convicts to justice under Article 391 of the Criminal Code is solely an instrument of pressure on convicts, a punishment with signs of arbitrariness.
A telling aspect. Despite a generally positive trend towards a gradual decrease in crime rates in correctional colonies (with the exception of 2007 and 2008), the specific weight of crimes provided for by Article 391 of the Criminal Code (until 1 January 2004 – Art. 183-3 of the 1960 Criminal Code) has significantly increased over the last 14 years and continues to remain high. This indicates the active use of this norm by the administrations of correctional institutions.
In 1994, 616 crimes were registered in the correctional colonies of Ukraine. The crime rate per 1000 convicts was 4.6. And, for example, in 2006, these figures were 411 and 2.86. An analysis of the structure of crime in correctional colonies shows that for more than the last ten years, the maximum number of criminal cases has been initiated on the grounds of the crime provided for by Article 391 of the Criminal Code. Such crimes constitute the lion’s share of all crimes registered in places of imprisonment. In 1994, the share of this category of criminal cases was 23%; in 1998, it was 52.6%; in 2002, 73%; and in 2006 and 2007, 54% and 50% respectively. Each year, about 600–800 cases are opened under this article. In response to a request from the ‘Donetsk Memorial’ regarding the number of such cases, the Department did not provide information, advising to contact... the Ministry of Internal Affairs.
And as long as this article of the Criminal Code exists, there is a simple opportunity to bring convicts who are inconvenient to the administration to criminal liability, for which it is enough to simply impose a series of disciplinary penalties on the convict over a certain period.
Anti-Terrorist Units and Rapid Response Groups
Article 6 of the Law ‘On the State Criminal Executive Service of Ukraine’ includes militarised formations in its composition. These are units intended for guarding and preventing and stopping actions that disorganise the work of correctional institutions, defined in Article 392 of the Criminal Code. Any other actions: speech, violation of the order and conditions of serving the punishment, including failure to comply with the requirements of the regime, do not belong to the sphere of possible application of such formations. There is no special law that would define the principles of these special units. Thus, they operate on the basis of... the Law ‘On the Fight against Terrorism’. Article 4 of the law defines the subjects of the fight against terrorism, which includes the Department for the Execution of Punishments. That is, as ridiculous as it sounds, within its competence, the Department can fight terrorism with the help of a specially created anti-terrorist unit. Despite the fact that the order on the basis of which these units were created was later removed from the State Register of Regulatory Acts, judging by the Department’s official reports, the units continue to exist. At the same time, there are no legal grounds for their creation, and, of course, no regulation of their activities.
Human rights activists can only be outraged by the cynicism of officials who seek ‘help’ from such units in cases of suppressing convicts who are trying to defend their rights.
All of this is a direct violation of not only domestic legislation but also Ukraine’s international obligations. The UN Committee Against Torture noted in its recommendations based on the results of Ukraine’s report: ‘The Committee is concerned about reports of the use of an anti-terrorist unit in masks inside prisons, which leads to the intimidation of prisoners and their ill-treatment.’ In general, if one proceeds from the tasks facing the department, the existence of such a unit is out of the question.
However, anti-terrorist special units, as it turned out, are not the only militarised formation within the ‘belligerent’ department. In 2000, by a secret departmental order of the department, ‘rapid response groups’ were created. Subsequently, they were mentioned as a separate link of special purpose units, although they are separate militarised formations. Rapid response groups and special purpose units are different entities that are involved in performing the same functions: punishing recalcitrant convicts. Perhaps this is why the impression arose that after the cancellation of the state registration of the order on special purpose units, the rapid response groups were also cancelled. But this is not the case, human rights activists claim. And, in fact, the department confirms their operation—at least through press releases on its official website, in which it is noted: such formations were not introduced into the colony.
According to the law, to stop group illegal actions of convicts and eliminate their consequences, by the decision of the head of the department or the head of the territorial administration body of the department, the forces and means of the colony, agencies, and institutions for the execution of punishments are used. If necessary—with the permission of the relevant officials—those of the agencies and units of the Ministry of Internal Affairs. But rapid response groups are armed formations that can only operate in accordance with a special law that would provide for their functioning. There is no such law.
Moreover, no current regulatory act contains a definition of what exactly should be understood by the term ‘group illegal actions of convicts’. Therefore, the administration of institutions for the execution of punishments determines this at its own discretion. And in principle, two convicts—this is already, one might say, a group. Since the activities of rapid response groups are also not normatively defined, this creates opportunities for the illegal and unreasonable use of force and special means.
Clause 61 of the Internal Regulations of Institutions for the Execution of Punishments: ‘The personnel of the institution has the right to independently use tear gas, rubber truncheons, and physical force in the event of: suppressing mass riots and group disobedience on the part of convicts; detention or escorting of convicts who have committed gross violations of the regime of detention to the disciplinary isolation ward, chamber-type premises, or punishment cell, if the said persons resist the personnel of the duty shift or if there are grounds to believe that they may cause harm to those around them or to themselves...’
The complaint was not confirmed...
Several norms of the current legislation provide for the right of convicts to appeal against the actions and decisions of the bodies and institutions of the criminal executive system. However, unfortunately, there is no clear procedure for such an appeal. For example, the legislation defines the procedure for appealing the decisions of Regional Commissions regarding the distribution of convicts. But this regulation is so inconsistent and vague, and also contains such restrictions, that, in fact, appealing a commission’s decision is impossible. Appealing the decisions of other bodies of the criminal executive system is generally of a dubious nature, as the mechanism for implementing this appeal is complicated.
In general, the system for submitting appeals, statements, and complaints is built in such a way that, with the help of the institution of ‘review’, any appeal, statement, or complaint of a prisoner can be sent or not sent to the addressee, depending on the will of the officials of the criminal executive institutions.
Access of convicts to justice, in fact, exists only in the part concerning the legality of the application of procedural measures and punishment to them—through the institution of judicial appeal of the decisions of inquiry bodies, investigation, and the court, as well as through appealing to the court of first instance. From Article 55 of the Constitution as a norm of direct action, it also follows that there is a possibility for an individual to appeal to the court on the issue of appealing improper treatment of them by the institution’s staff. However, the procedure for such an appeal is not provided for by any law or subordinate regulatory document.
With the adoption of the Code of Administrative Judiciary of Ukraine, the corresponding category of cases should have been considered by administrative courts. However, there is no such practice, and the issue of the jurisdiction of cases regarding complaints of convicts against the actions of bodies and institutions of the criminal executive system remains open.
As the official responses of the prosecutor’s office show, almost all complaints from convicts do not find their confirmation...
Healthcare
Medical and social welfare of convicts is regulated by law in such a way that the staff of criminal executive institutions can, without unnecessary trouble, and without violating the law, not provide convicts with even that minimum which is truly necessary for survival in conditions of isolation.
The most negative reaction of the Committee for the Prevention of Torture (hereinafter—the Committee) is caused by the observance of the convicts’ right to health in the Ukrainian criminal executive system. Criminal executive legislation in the area of health care allows the administration at its own discretion to allow or not allow a convict medical assistance or the use of additional medical services. The Criminal Executive Code contains a provision according to which a convict has the right to apply for consultation and treatment to institutions that provide paid medical services. Payment for such services and the purchase of necessary medicines are carried out at the expense of the convict or their relatives. At the same time, this progressive provision is too difficult to implement in view of the regime prohibitions and restrictions, which, in fact, deprive the convict of such a right.
In reality, the healthcare of prisoners consists solely of periodic medical examinations and the acknowledgement of certain diseases.
The level of incidence of mental and somatic diseases in colonies is very high. A study of the situation in the Lviv region showed that among convicts, tuberculosis was detected for the first time in 14%. Among those who have multiple convictions, it was 39%. Four or more—47%.
Even the meagre provisions established by our legislation are not implemented. The provisions concerning the healthcare of convicts do not provide for a procedure for the medical servicing of convicts, its mandatory nature, frequency, and scope. The criminal executive legislation of Ukraine does not contain provisions that would provide for the liability of officials and civil servants for improper medical care of convicts and causing harm to the health of convicts. And most often, it is precisely the improper conditions of detention of convicts that are the cause of diseases.
An important aspect. The medical service in places of execution of punishments is, in fact, subordinate to the administrations of criminal executive institutions. Human rights activists note that medical care is manipulated for the purpose of achieving specific goals. It loses its function of providing medical assistance to convicts and acquires a bureaucratic, administrative colouring. Medical intervention is carried out for the purpose of isolating and suppressing those who disagree with the actions of the administration. And until a medical service not subordinate to the administrations of the institutions is created, medical workers will remain involved in the process of ‘executing the serving of punishment’.
The colony staff themselves call tuberculosis the main problem of these institutions. In recent years, they note, the number of patients with tuberculosis has increased significantly due to prison overcrowding and the lack of proper sanitary conditions for controlling the incidence. The assortment of available medicines is narrowing. In Ukrainian penitentiary institutions, the number of cases of multidrug-resistant tuberculosis is growing. At the same time, the healthcare service of the penitentiary system does not have accurate data regarding the scale of this phenomenon. According to doctors' estimates, approximately 20% of registered prisoners suffer from a severe form of tuberculosis, caused, in particular, by antibiotic resistance.
The Dnipropetrovsk branch of the International Society for Human Rights visited 10 institutions for the execution of punishments, researching the conditions of detention of patients with tuberculosis. The group concluded that the conditions in which the patients are kept are cruel and inhumane. The vast majority of sick convicts are in rooms where 54 to 104 beds are installed in an area of 60 square metres. The bunk beds are placed in two tiers and block the light. For 100 patients, there are five sinks and four ‘holes’ without toilet bowls, any partitions, or doors for the ‘façade’. Dirty showers with four shower heads and faulty taps are located in dark rooms, and the water is only cold. Only 3% of the surveyed patients dared to say that repairs have been ongoing in the showers for half a year. The members of the group verified that the quality of food is unsatisfactory, and the treatment of patients is insufficient. 30% noted that relatives bring them medicine. 10% noted that they take medicine irregularly or do not take it at all, even though they need it.
Right to Work
The main thesis of international regulatory acts regarding the labour of convicts is that labour cannot be slave labour, must be paid for, and must not contain signs of punishment and humiliation. That is, a convict cannot be punished with labour.
Criminal executive legislation of Ukraine, in the opinion of human rights activists, leaves huge space for abuse by the administration of criminal executive institutions regarding the issue of the rights of convicts to work and a decent level of its remuneration. And the practice of executing punishments shows that these opportunities have not gone unnoticed by the administration.
All measures and guarantees regarding the performance of labour duties by convicts must correspond to similar measures established for persons who are at liberty. In practice, of course, it is ridiculous even to speak about this.
In international standards (European Prison Rules), the rule regarding remuneration for work is formulated unequivocally: for their work, prisoners must receive fair remuneration. The criminal executive legislation of Ukraine has established an exception that provides for the possibility of involving convicts in labour without payment. This concerns cases when convicts work on jobs for the improvement of colonies and surrounding areas, as well as the improvement of housing and living conditions or on auxiliary works for providing colonies with food. Convicts are involved in these works in turns, in their non-working time, and for no more than two hours a day. This provision of Ukrainian legislation violates the requirements of international acts and makes it possible to deprive a convict of free time altogether. After all, for example, work on improvement is possible in time free from the main work, and its duration is exactly equal to the maximum possible duration of a convict's free time.
A whole range of articles provides for the use of convict labour as a punishment (Art. 68, 82, 132, 145 of the Criminal Executive Code). This directly contradicts international standards for the treatment of prisoners. Even a penalty such as ‘appointment to extra duty for cleaning the premises and territory of the colony’ violates the requirements of the European Prison Rules, according to which prisoners cannot be punished in a disciplinary order with work for maintaining the institution itself.
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Probably, it is not easy for the public to influence the situation in places of imprisonment. But some means of influence still exist. How are they used? An important mechanism for checking the observance of human rights in places of imprisonment is public control over the activities of institutions for the execution of punishments. In accordance with Part 2 of Art. 25 of the Criminal Executive Code, this function is assigned to supervisory commissions acting in accordance with the Regulation adopted by the Cabinet of Ministers.
These commissions have existed since the mid-60s, and in recent times they have worked mostly formally. In no state body of Ukraine, researchers claim, is there a real picture of the actual activities of supervisory commissions. This situation is linked to the fact that, at the stage of adopting the Regulation, it did not provide an opportunity to create an effective mechanism for controlling the department’s institutions, as a result of which public control of the department’s institutions is effectively inactive. Over the last year, dozens of emergency events have occurred in the department’s institutions, including attempts by prisoners to commit suicide in protest against ill-treatment. During the public discussion of this problem, there were not even mentions of supervisory commissions and their role in observing the rights of prisoners.
According to data from regional units of the Ministry of Labour and Social Policy, there are 657 supervisory commissions in Ukraine, in which more than 6400 people work. The effectiveness of their activities is evidenced by the statistics of human rights violations they have discovered. At the end of last year, the organisation ‘Donetsk Memorial’ sent a request proposing, in particular, to report how many cases of human rights violations had been recorded by the regional commission during the year. More than half of the addressees sent responses. With the exception of the Chernihiv region, where 26 cases of human rights violations in institutions for the execution of punishments were registered during the year, not a single one was recorded in the rest of the regions... Obviously, the issue here is not that the executive institutions of the Chernihiv region work the worst, but that in other regions, public control does not work. Of course, if we talk about the reasons for this state of affairs, a number of questions arise regarding the regulation of the activities of public control. However, isolated positive examples show that even under the current conditions, supervisory commissions have the opportunity to help in protecting the rights of convicts. The vast majority of non-governmental organisations that cooperate with the system’s institutions limit their activities to awareness-raising and charity, the provision of legal aid, and possible assistance after release, which, of course, is also very important. Such a focus makes it possible to avoid conflicts with the administration of the institutions. At the same time, researchers also note the inability of most non-governmental organisations to exercise control at a proper level without turning it into exclusively searching for the negative in the activities of institutions for the execution of punishments.