A Section of the Annual Report That Was ‘Unlucky’

On 5 June, the Human Rights Commissioner presented her annual report for 2012 in the Verkhovna Rada.
This is V. V. Lutkovska’s first annual report. It provides an opportunity to observe how the requirements of the Law of Ukraine ‘On the Human Rights Commissioner of the Verkhovna Rada of Ukraine’ are being implemented, as well as the declared principles of the Ombudsman’s activity, particularly openness and the involvement of non-governmental organisations in cooperation.
I would like to focus on the examination of just one section: ‘1.4.2 State Penitentiary Service’.
In accordance with Article 18 of the Law of Ukraine ‘On the Human Rights Commissioner of the Verkhovna Rada of Ukraine’, the Commissioner publishes an annual report on the state of observance and protection of human and civil rights and freedoms in Ukraine by state authorities, local self-government bodies, associations of citizens, enterprises, institutions, and organisations, regardless of their form of ownership, and their officials and officers who have violated human and civil rights and freedoms through their actions (or inaction), and on identified deficiencies in legislation regarding the protection of human and civil rights and freedoms.
The annual report must contain references to cases of violations of human and civil rights and freedoms regarding which the Commissioner has taken necessary measures, the results of inspections conducted during the year, and conclusions and recommendations aimed at improving the state of ensuring human and civil rights and freedoms.

What is the state of observance and protection of human rights and freedoms in the sphere of activity of Ukraine’s Penitentiary Service in 2012? What important problems in this sphere does the Human Rights Commissioner consider it necessary to note in her annual Report?
In the Report, information about this is allocated 5 pages—from 39 to 44. The section contains:
- a list of the department’s institutions and statistical data on the dynamics of the number of persons in pre-trial detention centres and educational colonies;
- a list of 29 institutions visited by Secretariat representatives—taking up almost a page;
- typical human rights violations identified during monitoring visits;
- a list of deficiencies inherent to specific pre-trial detention centres and, separately, correctional colonies;
- deficiencies in the Kerch Correctional Centre.
The section concludes with 13 recommendations to the State Penitentiary Service.
It can be immediately noted that the Report does not contain cases of human and civil rights violations in the activities of criminal-executive system institutions regarding which the Commissioner has taken necessary measures, nor any explanation for their absence. Is the absence of such provided examples significant? Most likely, this element of the Report is desirable. However, the absence of information on individual cases cannot automatically mean that they did not occur. Therefore, it is reasonable to consider that their absence is not decisive in forming a general idea of the situation regarding human rights observance in the activities of the penitentiary system.
Based on the information provided in the Report, among others, the problems in the sphere of human rights observance in the SPSU are:
− insufficiency of natural and artificial lighting in cells;
− absence of forced ventilation in cell-type and other premises where persons are held;
− excessive humidity and fungal infestation of the walls in some cells;
− detention of persons with tuberculosis, including active forms, in the same cell with healthy individuals;
Other typical violations of human and civil rights inherent in all indicated types of places of detention include:
− untimely and ineffective investigation of cases of bodily injuries sustained by prisoners and convicts;
− non-compliance with the utility area standard of 2.5 sq. m per prisoner in pre-trial detention centres and 4 sq. m per person in correctional colonies;
− корпуса (building premises) of pre-trial detention centres and sleeping quarters of correctional institutions require ongoing and capital repairs;
− laundry equipment has exhausted its service life and requires replacement.
One can agree with the presence of violations noted by the authors of the Ombudsman’s report section, as the named problems are quite widespread.
Undoubtedly, there are many different problems in the activities of penal institutions that affect the level of human rights observance. Any list of them will always be incomplete. However, it is not superfluous to recall a banal statement: among them are significant and mass-scale issues, and there are less widespread ones.
From this section of the Report, one gets the impression that among the most acute problems regarding human rights observance in the Penitentiary Service are:
‘the absence of forced ventilation in cell-type and other premises where persons are held;
excessive humidity and fungal infestation of the walls in some cells;
obsolescence of laundry equipment and the need for its replacement.’
Is this really the case? How widespread are these problems? It is impossible to get an answer from the Report. The scale of the violations and deficiencies presented in the Commissioner’s Report is difficult to evaluate based solely on the Report itself.
The situation looks like the song: ‘someone, somewhere, sometimes...’
Of course, the range of human rights violations in this system is much broader than those indicated in the Report. However, it is somewhat strange that one cannot learn anything from the Report about problems with the labour of convicts, often unpaid (effectively slave labour), or about the reasons for the absence of social insurance for convicts, which concerns over 35,000 working convicts.
There is not a word in the Report about problems regarding the denial of medical assistance, the refusal of it, or the impossibility of sending complaints—that is, the complete absence of a complaint-submission system; an eloquent fact: in 2012, for example, out of nearly two hundred complaints received by the central department, not a single one was confirmed.
The Report mentions no cases of beatings of convicts or detainees, even though 179 people died in pre-trial detention centres alone during 2012 (Paragraph 64 of the ‘Donetsk Memorial’ report ‘Observance of Prisoners’ Rights in Ukraine-2012’). Nothing is reported about cases of prisoners going on hunger strikes and the administration’s resistance to registering such cases.
There is no mention of the significant growth—nearly 40%—in prisoner mortality and suicides in 2012 compared to 2007–2010. And one cannot learn anything about decisions of the European Court of Human Rights regarding problems existing in the penitentiary system—as if they do not exist at all.
I am not even mentioning the complete absence of any mention of problems with criminal-executive legislation—about the inept and unconstitutional norms of the Criminal-Executive Code that need to be corrected, or about the illegal use of special forces units—even though in January 2013, the Ombudsman submitted a motion on this issue. Was nothing done in 2012? Meanwhile, the Article 18 of the Law cited above requires the Report to contain reports on identified deficiencies in legislation regarding the protection of human and civil rights and freedoms.
If the Report names important but not the most painful problems, then another question arises: why did a number of the most acute issues remain outside the attention of the authors of this section of the Report?
After all, the Report contains no hint as to why these issues, which in fact constitute a huge array of human rights violations, did not even find a mention in the Report.
It may create the impression that, in the Ombudsman’s opinion, these violations do not exist at all.
It is appropriate to note that a similar approach to the selection of information about human rights violations in the penitentiary sphere, to the one presented in the Report, was contained in the report of the department for the implementation of the national preventive mechanism, published at the end of 2012.
At that time, in a letter dated 14 December 2012 to the Ombudsman, ‘Donetsk Memorial’ noted features inherent to that report:
‘If one conditionally divides the remarks into those concerning "premises" and those concerning "people," it turns out that almost all the problems of the penitentiary service institutions named in the Report concern "premises" (humidity, lighting, heating systems, restrooms, etc.). This is especially noticeable in comparison with the list of remarks regarding Ministry of Internal Affairs institutions, where half are about "people" (e.g., untimely and low-quality feeding of persons in temporary detention facilities or untimely taking of such persons out for walks).’
‘It is felt that those who carried out monitoring visits in the SPS institutions looked exclusively at the walls, but for some reason did not identify as worthy of mention problems concerning people—convicts and staff. And they exist, and are sometimes more significant than "the textured covering on the walls of walking yards." For example, the almost complete absence of a complaint-submission mechanism (and for Ministry of Internal Affairs institutions, there is a similar remark—improper maintenance of complaint books...). It is the quality of food, access to medical services, the difficult situation with the procedure for accepting parcels in pre-trial detention centres, etc. And there is also the level of staff knowledge of international documents and standards.’
Unfortunately, this same overly selective approach to existing violations and deficiencies remained almost unchanged in the Report—it is worth reviewing the section’s recommendations. And for some reason, such an approach only concerns the penitentiary sphere. For comparison: of the first six recommendations of the Ombudsman’s Report regarding police institutions, five concern ‘people,’ not ‘premises.’

The significance of the recommendations provided in the Ombudsman’s Report can be assessed if compared with the recommendations contained, for example, in the ‘Donetsk Memorial’ report ‘Observance of Prisoners’ Rights in Ukraine-2012.’

Recommendations of the Ombudsman’s Report:
Ensure proper laundry of prisoners’ personal items.
Equip toilets in pre-trial detention centre cells and dormitories for convicts with semi-automatic water flushing.
Take measures to fill vacant positions for medical personnel.
Equip shelving for the placement of personal items submitted by convicts for laundry.
Resolve the issue of equipping dining halls for convicts with the necessary number of washbasins for handwashing.

Recommendations of the ‘Donetsk Memorial’ report:
Immediately initiate effective measures to bring departmental regulatory legal acts into compliance with the Constitution of Ukraine and the norms of the Law of Ukraine ‘On Mandatory State Pension Insurance,’ and implement mandatory social insurance for working convicts with the mandatory accrual of necessary contributions to the Pension Fund.
Determine the factors for the significant growth of mortality and suicides in penal institutions and take measures to reduce them.
Implement a realistically functioning system for submitting complaints; stop the practice of punishing convicts for attempting to appeal against the actions of the institution’s administration.
Define and enshrine in legislation the tasks and legal foundations for the activity of special forces units in the system, as well as the scope of their competence. Do not allow the use of special units for conducting searches; do not use them until the completion of the regulatory harmonisation of their status and powers. It is mandatory to involve the public in the discussion of these issues.

The motives for the authors of the section using the chosen approach to defining human rights problems in the penitentiary sphere may be different. Perhaps the authors had an idea, for example, to consider areas of human rights violations in the penitentiary system ‘in turn’—first about ‘walls,’ next year—medical issues, the year after—the complaint-submission system. Pity that with such an approach, some areas of rights violations will not be reached for ten years.
There may be another reason—for example, the professional level of the section’s authors and their ability to properly and adequately illuminate the entire complex of problems in the activity of the Penitentiary Service. Perhaps, while preparing the Report section, it would have been worth using the services of specialists, scholars, or, finally, experts from relevant public organisations. However, it seems that specialists in the penitentiary sphere were not involved. As for the involvement of relevant public organisations, it is not worth speaking of.
The highly amateur level of the mentioned Report section is strange also because many other sections of the Ombudsman’s Report are prepared more thoroughly, professionally, and substantively. It must be admitted: this year, this section was clearly ‘unlucky.’
This regrettable conclusion has quite important consequences: the list and nature of remarks regarding the Penitentiary Service in the Report are quite ‘convenient’ for the agency’s leadership.
Firstly, with a high degree of probability, the agency and the authorities as a whole will consider that if there is no mention of a problem in the Report, then the problem, at least as a significant one, DOES NOT EXIST.
Secondly, fulfilling the Ombudsman’s Report recommendations will be quite easy for the agency: it is enough to ‘repair’ certain premises in some ‘separate’ institution, install a couple of dozen washbasins, and replace laundry equipment in a couple of institutions—and one can report that almost ALL recommendations of the Ombudsman’s Report for 2012 in the sphere of ensuring human rights observance in the penitentiary system activity have been FULFILLED! Well, and as for the unrepaired ventilation—that is the ‘fault’ of the Verkhovna Rada and the Government, because they did not allocate the funds. And everyone seemingly worked well—the Ombudsman provided recommendations, and the agency responded ‘effectively,’ took measures, and seemingly fulfilled most of the recommendations. Although, in the meantime, the heavy situation with human rights observance in the institutions will not change in reality.
Was this section of the Report written in such a ‘limited’ format precisely for such a ‘convenient’ algorithm?
In conclusion, one can sum up: the published section ‘1.4.2 State Penitentiary Service’ of the Ombudsman’s Report reflects the real problems of the criminal-executive system in the sphere of human rights observance too limitedly and does not contain information on a significant number of important issues and factors that affect the level of observance of prisoners’ rights.
It is obvious that the implementation of the recommendations proposed in the section, unfortunately, will not be able to significantly influence the general level of human rights observance in the activity of the Penitentiary Service.
One can only hope that the amateur level of assessment of problems regarding the violation of prisoners’ human rights presented in the Report will not remain at this level in the future, and that this section will indeed be ‘luckier’ next time.