The Presumption of Guilt from the Ministry of Justice of Ukraine: A Step into the Past for Pre-trial Detention Centres

*«Ми з тобою народилися й виросли в країні,
яка сама по собі — місце «не надто віддалене».
В’язниця — лише її мініатюрна копія».*
A. Kudin, *How to Survive in Prison*

Recently, under pressure from various factors, the President of Ukraine, V. Yanukovych, tasked the government with humanising the rules and conditions of detention within the institutions of the State Penitentiary Service of Ukraine (SPSU), specifically the rules for detention in pre-trial detention centres (SIZO). As it happened, I had to draft some of my own proposals for amendments to the regulations governing the detention of prisoners in these facilities. Looking back at what was written, I am once again convinced of the naivety I had spotted even then regarding the idea of allowing prisoners to use laptops. My justification for this was that, for a moment, it seemed to me as if a will—albeit a forced one—had truly emerged 'from above' to change something for the better behind bars, and that, perhaps, 'they' might actually dare to radically change the philosophy of pre-trial detention in Ukraine.
However, things did not turn out as expected. The Ministry of Justice recently adopted those long-awaited humanitarian changes to the legislation regulating the detention of prisoners in SIZO—specifically, the new Internal Regulations for Pre-trial Detention Centres of the State Criminal-Executive Service of Ukraine (the 'Regulations'). These regulations have rendered the order of the State Department of Ukraine for the Execution of Sentences dated 20 September 2000, No. 192, "On the Approval of Regulatory Acts Concerning the Detention and Conduct of Persons Taken into Custody and Sentenced in Pre-trial Detention Centres of the State Department of Ukraine for the Execution of Sentences," null and void.
First and foremost, it must be noted that even a cursory review of this document involuntarily gives rise to the idea that, when drafting it, the goal was not to humanise pre-trial detention but, on the contrary, to keep it as 'barbaric' as possible in the 21st century.
It is striking how cynical these Regulations appear against the backdrop of the provision in Part 3 of Article 183 of the Criminal Procedure Code of Ukraine, which stipulates that when a decision is made to take a person into custody, the amount of alternative bail must be determined. This provision allows practically most of those who have fallen into the orbit of criminal justice and have sufficient funds to pay a certain amount and walk free, while those who are unable to pay will be forced to experience all the negative potential of the new Regulations. In short: if you have money, you can walk free; if not, you will endure whatever awaits you in Ukrainian pre-trial detention centres.
Instead of taking into account that the activities of pre-trial detention centres will now, even more than before, determine the fates of the poorest segments of the population, and instead of recalling Article 62 of the Constitution of Ukraine—which clearly and unambiguously establishes the innocence of a person in the commission of a crime until their guilt is proven in a lawful manner and established by a court’s guilty verdict—the Ministry of Justice, by drafting and adopting the new Regulations, has once again confirmed the Soviet approach to pre-trial detention, wherein everyone who ends up in a pre-trial detention centre is automatically considered guilty of committing a crime. According to the Ministry’s logic, the punishment of an individual should begin already in the pre-trial detention centre, whereas the entire civilised world understands that a pre-trial detention centre is merely a forced and extreme measure aimed primarily at preventing interference with a criminal investigation and bringing the guilty person to criminal responsibility. Based on this, the task of the pre-trial detention centre regarding those taken into custody is only one: to ensure their reliable isolation without violating human rights. Moreover, any restriction of their rights (for example, a ban on certain activities or the use of specific items) can be justified only by the necessity of ensuring physical (not spiritual) isolation, and by ensuring the rights of others are respected.
At the same time, the Ministry of Justice decided to do the exact opposite through these innovations. The new rules embody the goal of restricting people in every possible way.
Reading the Regulations, two main explanations for this approach arise:
1. Those who wrote the rules set out to develop as many safeguards as possible to ensure that any information concerning criminal proceedings could not be sent to or from the prisoners. In my opinion, this caused most of the senseless restrictions;
2. The rules were written under the serious influence of proposals from practical staff of the SPSU. This is explained by the existence in the rules of a very large number of provisions aimed primarily at facilitating the work of SIZO staff. These provisions persist even though the practical benefit of their implementation is far disproportionate to the losses that prisoners’ rights must endure. As a result, a mass of restrictions on prisoners' freedom will ultimately affect the society to which they must return after such conditions, which maximally disorient and negate the individual.
Regarding the philosophy of maximum information restriction for the sake of ensuring that no information about a criminal case is transmitted, several arguments can be made that demonstrate its fallacy and harmfulness. First of all, it is no secret that instead of legal channels for transmitting information, illegal ones have formed and are successfully operating in pre-trial detention centres. Consequently, the more restrictions there are in a SIZO, the higher the level of corruption and legislative violations by the prisoners themselves can be expected. This means that, given the desire, there is always an opportunity to transmit any information to the outside world and receive it from there—the very thing the numerous embedded restrictions are meant to prevent. Furthermore, prisoners have a perfectly legal opportunity to communicate confidentially with their lawyer, which provides boundless and unlimited opportunities to relay and receive the necessary information from the necessary people.
Under such conditions, all the Ministry of Justice’s attempts to ensure the maximum informational isolation of prisoners are nullified. Other unreasonable restrictions, such as the prohibition on possessing certain items, serve as a good prerequisite for increasing the meagre salaries of SIZO staff through the legalisation of these restrictions in practice for a fee.
It is worth noting that the Regulations are indeed modernised in a certain way, as they impose a ban on all possible means of communication and other electronic devices, taking into account all the latest technological gadgets that have appeared on the Ukrainian market in recent years. Thus, the Regulations prohibit (cl. 4.5, Section 1) any TV, radio, audio, and video equipment, audio and video cassettes, CDs and DVDs (with the exception of one television set per cell); radio-electronic devices designed for transmitting or receiving radio signals (radio stations, communicators, mobile phones and their chargers, SIM cards, mobile recharge scratch cards, pagers, routers, etc.), typewriters, copying machines and their headsets; computer equipment (except for computer equipment installed in classrooms and used in the educational process), gaming consoles and hardware, portable video games, batteries, and chargers.
From this, one can conclude that now, 'prohibited items' include not only means of communication but also any information storage devices, which is surely aimed at ensuring the SIZO administration’s comprehensive control over the information consumed by prisoners—that is, what films, programmes, and texts they watch and listen to (television and radio broadcasting are controlled from a special radio centre). As can be seen, portable video games and consoles are among the prohibited items, while Ukrainian pre-trial detention centres often offer no alternative activity that could occupy the prisoners' free time, a fact repeatedly pointed out by the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment (CPT). In addition, it is prohibited to host branches, representative offices, or other subdivisions of legal entities or the representatives of individual entrepreneurs within the SIZO territory (cl. 1.7, Section 1), which could have been one of the ways to solve the crying problem of the lack of useful activities for prisoners.
Even typewriters have turned out to be prohibited, which is aimed at achieving unclear objectives. How can a writer, for instance, harm the regime by having a typewriter, when there is always the possibility of writing with a ballpoint pen? Although the ban on typewriters is worth nothing in comparison to the fact that the Regulations have retained a provision with roots almost a century old, concerning the prohibition of storing and using coloured pens, pencils, paints, and carbon paper (with the exception of simple pencils and pens in black, blue, or violet colours).
In general, the new bans codified in the Regulations are distinguished by their ingenuity, which, as previously noted, may confirm that the authors of this document based their work on ideas proposed by the SPSU.
For example, who other than an SPSU employee could have thought to forbid prisoners not just from playing cards, but also from organising and participating in other games of chance for the purpose of material gain? Surely, only a practical employee could have thought of banning prisoners from having energy drinks (cl. 4.5, Section 1). A 'practical' innovation is the duty to make one's bed according to the pattern established by the administration (cl. 4.2, Section 1)—incidentally, such a rule exists in correctional colonies; previously, detainees and prisoners were simply required to make their beds after rising. Also, while previously detainees and prisoners in SIZO were required to follow rules of conduct and cleanliness during walks, now a duty has been added that is clearly 'practically oriented': to maintain silence, which remotely resembles features of the so-called Philadelphia or Pennsylvania systems of punishment, in which prisoners were once disciplined through quiet and silence. Among the examples is the prohibition of entering into disputes with persons visiting prisoners or with SIZO staff. This deprives them of any possibility of debating, for example, with relatives during a visit.
These and several other rules undoubtedly testify to the fact that for the 'humanisation' of detention rules in pre-trial centres, unfortunately, it was not the proposals of scientists and the public that were taken into account, but those of the SPSU, which, naturally, is little interested in the humanisation and transparency of its institutions.
Retaining the ban on using obscene language and jargon, while even the majority of free citizens use these words in one way or another in everyday life, combined with a vast number of other restrictions on rights, can only lead to placing everyone held in pre-trial detention in a state of continuous violation of the law. This means that, in effect, everyone will be committing disciplinary offences, but only those whom the administration deems necessary will be held accountable.
Transferring moral norms into regulatory provisions can often lead to the existence of inept legal norms. This statement is also reflected in the Regulations. From now on, detainees and prisoners in SIZO are prohibited from possessing or using literature containing information of a pornographic nature (cl. 4.5, Section 1); the storage of books, brochures, newspapers, and magazines of a pornographic nature is prohibited (cl. 4.6, Section 8). At the same time, it is obvious that deciding what is to be considered pornographic and what is not will depend entirely on the discretion of the SIZO staff, as the Regulations contain neither criteria nor even any orienting norm. It can be assumed that such criteria will depend on the tastes of the SIZO staff—that is, if they like a certain piece of literature, they will leave it; if not, they will confiscate it—and, perhaps, on the relationship that develops between them and a specific prisoner.
The Regulations prohibit keeping syringes and needles (cl. 4.5, Section 1) instead of, as is done in some developed countries, acknowledging the presence of drug addiction behind bars and organising the free distribution of syringes. Such a measure would be aimed primarily at fighting infectious diseases, not at promoting drug addiction.
It is prohibited to use products and utensils made of porcelain, glass, ceramics, metal, and stainless steel, including pots, pans, mess tins, spoons, forks, mugs, plates, etc. (cl. 4.5, Section 1), which begs the question: what items can one use to eat with at all?
Reading the Regulations, one gets the impression that their authors are in a state of panic regarding glass, iron, and so on, and that prisoners only think about how to cut or kill someone. Meanwhile, there is a large number of other ways and items with which, given the desire, one could cause no less serious harm to life and health.
As before, all products delivered in glass and metal jars must be opened and transferred to another container, which significantly shortens their shelf life. Although there is nothing to prevent the contents from being left in the vessel after it has been opened and checked. Quite interesting from the point of view of the potential to be provided by the SIZO administration is the provision in cl. 3.3 of Section 9, which provides for the possibility of issuing and using manicure scissors and sewing needles only under the administration’s supervision.
It is still prohibited to deliver canned meat, fish, vegetable, or fruit products prepared in home conditions, even though a huge number of SIZO inmates are from low-income families who are simply unable to buy store-bought preserves. There remains an unfounded rule prohibiting products that require additional preparation via heat treatment, which formally excludes the delivery of pasta, cereals, vegetables, etc. Instead of allowing refrigerators in cells, the ban on perishable products requiring special storage conditions remains. As stated in the Human Rights Watch report on the results of monitoring the Soviet punitive system (published in 1991), such a senseless Soviet restriction was explained at the time by prison staff as being because these products are high-calorie and thus provide an opportunity for prisoners to prepare well for an escape. In our time, evaluating the reasonableness of such a justification deserves nothing but a smile.
An innovation is the ban on deliveries of ready-made meals. Moreover, the list of food products can now be further limited at the direction of the sanitary-epidemiological service.
All these, so to speak, sanitary-oriented norms will ultimately continue to be aimed at encouraging the purchase of products in SIZO shops, as well as forcing prisoners to eat food that often does not suit them—not only in taste but also in quality, dietary needs, etc.
The regressive rule about limiting the amount of money allowed to be spent per month to the size of one monthly wage also remains. This rule can have no justification other than a punitive purpose. That is, like many others, it confirms the idea of applying restrictions solely for the purpose of punishment, even to persons for whom no punishment has yet been assigned and who are considered innocent.
Moreover, even from a practical point of view, many restrictions are disadvantageous. The aforementioned A. Kudin aptly expresses this in his book *How to Survive in Prison*, in which he describes the horrors of his time in the Lukyanivske SIZO: 'No one cares about how to improve the life of prisoners, even at the prisoners’ own expense. The jailers couldn't care less about increasing some volume of sales or some profit... They earn well enough as it is. The greater the deficit in prison, and the more problems the convict has, the more money circulates in the shadow economy'.
The authors of the Regulations were so carried away with the game of 'what else can we ban' that even in the provision dedicated to the list of rights of detainees and prisoners, which begins with the words 'Detainees and prisoners have the right,' they—contrary to the rules of legal technique—enshrined a duty: 'Detainees and prisoners held in a SIZO must (!) be polite to the personnel of these institutions, as well as to persons visiting them, address them formally using the polite 'you', refer to them by their first name and patronymic, or use "citizen" [followed by] their rank or official position'.
Incidentally, the Regulations contain a mass of errors from the perspective of legal technique. For example, in cl. 3.7 of Section 2 of the Regulations, it is stated that the list of food products, essential items, and other things and objects that are prohibited from being delivered to detainees and prisoners, as well as from being used or kept in their possession, is defined by sub-clause 4.6 of clause 4, chapter 4, section 1 of these Regulations, whereas this list is actually defined in cl. 4.5 of clause 4, chapter 4, section 1.
Without dwelling separately on this problem, which is characteristic of the Ministry of Justice’s law-making abilities, let us draw attention to the following. According to cl. 4.1 of Section 1 of the Regulations, 'Receipt by these persons (convicts who are in a SIZO in connection with other criminal proceedings — V.Ch.) of parcels and deliveries, as well as their purchase of food and essential items, are carried out in the order established by the Criminal-Executive Code of Ukraine for the security level of a correctional colony.' This norm is copied from the law 'On Pre-trial Detention', which is outdated, as it does not reflect the changes in legislation that were introduced several years ago and which provide that the number of parcels and deliveries that can be sent to convicts in a correctional colony is unlimited and, accordingly, does not depend on the security level of the colony. This also indicates that there was a person among the drafters of the Regulations who is poorly acquainted with criminal-executive legislation.
The Regulations largely reflect the provisions of the law 'On Pre-trial Detention', and therefore they contain inhumane norms, most of which, incidentally, have not changed for 20 years. That is why the reform of the institution of pre-trial detention should be carried out not only at the level of a by-law but also through the laws of Ukraine, in particular the Law 'On Pre-trial Detention'. Among the norms of this law that require special attention and reform are those that define the legal status of convicts and detainees. Just look at the norms that exclude the possibility of transferring books from relatives (only allowing their purchase through a retail book network), regulate the procedure for reviewing the correspondence of convicts, etc.
If previously it was forbidden to correspond, call out, and knock on walls to communicate with persons located in other cells, and during a walk—with persons located in adjacent yards, now it is also prohibited to transmit any items (cl. 4.3, Section 1), which effectively means a formal prohibition on even sharing toothpaste with a cellmate.
As before the adoption of the Regulations, it is forbidden to stick or hang anything on walls, windows, and cell inventory, which does not allow for hanging even a photograph of one's own family.
According to cl. 4.5 of Section 1, it is forbidden to store 'chemicals'. What is to be understood by this term remains a matter of conjecture, as it could even include soap, shaving foam, etc.
'Humanisation' also touched upon limiting the number of cigarettes allowed to be stored from 30 packs to 10, and the amount of tea allowed to be stored, which was previously unlimited and is now limited to 1 kilogram, with dry confectionery products (for example, biscuits) included in this weight.
If we distract ourselves from the boundless prohibitions, we can also pay attention to some other innovations. For example, SIZO personnel must address prisoners using the polite 'you' and 'detainee' [followed by] their surname ('detainee Ivanov'), instead of the previously existing rule according to which they had to be addressed by their surname ('citizen Ivanov'). Such a change, in perspective, cannot result in anything other than the humiliation of their dignity through constant reminders of their status. At the same time, prisoners will be required to address SIZO staff by their first name and patronymic or 'citizen', followed by their rank or official position.
Separately, there is the question of visits with loved ones and relatives. As before, such visits exclude the possibility of direct contact with them, and communication will take place using a telephone handset and through glass, which has been repeatedly condemned by the CPT, as well as by the European Court of Human Rights (see, for example, *Trosin v. Ukraine* (2012), *Horych v. Poland* (2012)). Likewise, the norm remains which provides for the equipment of glass partitions with so-called 'decorative grilles', which can hardly add decoration, but rather bring additional suffering to an already inhuman visitation procedure. A well-known specialist in prison reform, Andrew Coyle, believes that the application of such restrictions over a long period will inevitably lead to increased tension in relationships within the institutions.
Detainees are allowed to see their counsel in conditions 'excluding the possibility of eavesdropping or overhearing', while the visits are held in conditions that allow the SIZO administration to see the detainee or prisoner and the counsel, but not to hear them. Unfortunately, such conditions still do not apply to visits with relatives and loved ones, which are carried out 'in the presence of SIZO officials'.
Special is the procedure for visits with persons taken from a SIZO to a medical facility. To visit them, relatives will need to obtain permission from the head of the SIZO or their deputy, upon written permission from the investigator or court conducting the criminal proceedings, and later obtain a written conclusion from a doctor of the relevant health institution. Moreover, both counsel and the prisoner's relatives may be admitted by the guards only taking into account the daily routine of the health institution.
The Regulations detail the idea embedded in the Law 'On Pre-trial Detention', which provides for a virtually open permission to read the correspondence of detainees and prisoners. Thus, cl. 3.10 of Section 7 of the Regulations provides that 'letters and telegrams addressed to accomplices at large, victims, witnesses to a crime, containing any information concerning the criminal proceedings, insults, threats, calls for reprisal, commission of a criminal or other offence, information about SIZO security, its personnel, methods of transmitting prohibited items, and other information that may hinder the establishment of the truth in criminal proceedings or facilitate the commission of a criminal offence... [or] contain state or other secret protected by law, shall not be sent to the addressee, shall not be delivered to detainees and prisoners, and shall be transmitted to the person or body conducting the criminal proceedings.' But to determine whether a letter contains such information, one must read it! How then can one speak about a simple review of letters, and not about the most ordinary censorship?
Likewise, the reading of complaints and statements by detainees is effectively legalised (cl. 3.15, 3.16 of Section 7), except when they are addressed to specific bodies (3.5, 3.6 of Section 7). Moreover, the SIZO administration will have the right to decide which of them can be resolved on the spot, and also to resolve them even if they are not addressed to it. Although the possibility is still provided for, in case the sender insists, to send such an appeal, but with an attached letter (note) in which the SIZO administration provides explanations on the merits of the issues raised and the measures taken to resolve them.
The rule that all responses to statements, complaints, motions, and letters of detainees and prisoners are registered, announced against a signature, and attached to their personal files (cl. 3.18 of Section 7) makes it impossible to store responses or properly conduct the procedure for appealing the actions or omissions and decisions of SIZO personnel.
Such total control of correspondence, the foundations of which are already laid down in the Law 'On Pre-trial Detention', is evidence that one cannot speak of any openness in the activities of Ukrainian pre-trial detention centres.
The rules for detention in a punishment cell, known for their cruelty, have changed somewhat. They are still not allowed to take food products and personal belongings with them, except for a towel, soap, toothpaste, and toothbrush, and other personal hygiene products. Although it is now allowed to take religious literature, during the stay in the punishment cell, punishment by maximum isolation is still legalised (it is forbidden to read anything other than religious literature, write, or have visits) and even forcing them to consume only food prepared in the prison kitchen, as it is forbidden to have any food products in one's possession.
The equipment of the punishment cell also remains inhumane. Thus, in Appendix 30 of the Regulations, it is determined that in the punishment cell, the floor is asphalted (!), concreted, or wooden. That is, in a room where a person will have to live, regular asphalt is permitted instead of a floor.
Indicative is the retention of the norm that the punishment cell must have a window covered with metal welded bars, while the CPT, during its last two visits to Ukraine, pointed out the inadmissibility of equipping windows with such bars. By the way, the head of the Kharkiv SIZO in 2011 had to promise the Committee that the bars would be removed from the windows as soon as possible, the fulfilment of which the Ukrainian Government later assured the CPT. It seems that in order to reform certain problems of pre-trial detention in Ukraine, someone needs to constantly express their remarks regarding specific violations, instead of simply solving the systemic problem, for example, during the reform of the legislation which is taking place and being analysed in this work. It would be enough to simply adopt a rule that would prohibit the installation of bars on the windows of premises where detainees and prisoners are held.
Regulating relations in the sphere of medical care, the Regulations, unfortunately, did not define the list of doctors who must necessarily be in the SIZO, contrary to the existing problem of a constant shortage of certain categories of specialists.
As for the use of special means, the Regulations carry over the inhumane norm of Ukrainian legislation which determines: 'it is prohibited to strike with a rubber baton on the head, neck, clavicular area, abdomen, and genitals, and with a "tonfa" type baton—on the head, neck, solar plexus, clavicular area, lower abdomen, genitals, kidneys, or tailbone.' This, as can be seen, allows for hitting with a rubber baton on the solar plexus, kidneys, and even the tailbone.
The mandatory use of service dogs when leading prisoners out of their cells is codified, contrary to the recommendations of the CPT made following the results of a visit to Ukraine in 2009. At that time, the Committee drew attention to the excessiveness of such security measures even regarding persons sentenced to life imprisonment.
Some other significant remarks regarding the use of special means are expressed by I.S. Yakovets. The researcher draws attention to the fact that it is now permissible to use weapons even during an attack on other persons in the absence of an immediate threat to their lives (cl. 2.13, Section 5). And also to the fact that handcuffs, according to cl. 2.7 of Section 5 of the Regulations, can now be used on the basis of 'the existence of information that detainees or prisoners may commit an escape or cause harm to those around them', contrary to the grounds established in the laws of Ukraine.
The Regulations codified the necessity of having night lighting, without specifying what the wattage of the incandescent bulbs should be, which could lead to a situation in the future where a 100-watt bulb will burn in the evening, and an 80-watt one at night during sleep, which will hardly be of any significance for improving the comfort of sleep.
Summing up, it can be noted that under the new Regulations, the institution of pre-trial detention in Ukraine remains inhumane, violating fundamental human rights, and aimed at punishing persons awaiting the resolution of the issue regarding their guilt in committing a crime. The Ministry of Justice has further distorted the approach to the presumption of innocence, as remaining in a SIZO will remain much more burdensome than serving a sentence in a correctional colony.
Furthermore, as has been shown, staying in a SIZO will now become even more oppressive in comparison with the past. The terrible reform, as far as I am concerned, is a consequence of the mediocrity of the primary developer of the rules—the Ministry of Justice of Ukraine—which failed to consolidate almost anything of the positive that was proposed by scientists and the non-governmental sector. Instead, the basis was taken from the vision of certain individuals who, as the Regulations show, are far from understanding both the purpose of the SIZO, the theory of imprisonment, and international standards of the rights of persons in places of unfreedom.