An Unprecedented Disgrace for the State Penitentiary Service of Ukraine at the International Level
The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, the Committee)[i] on the results of its visit to Ukraine from 1 to 10 December 2012 has been published recently. This visit became unprecedented in its ‘explosiveness’, not only in the entire history of the Committee’s visits to Ukraine but also in its entire existence—and that is nearly 25 years of visits to 47 countries belonging to the Council of Europe (which also includes almost all former members of the USSR).
This assertion is based on the fact that, following this visit, a ‘public statement’ will be published in the near future, as indicated in the Report itself. Such a right of the Committee is provided for by Part 2 of Article 10 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in the event that national authorities refuse to cooperate or refuse to improve the situation by taking into account the Committee’s recommendations. In fact, this is precisely what Ukraine has done, which is discussed in the Report.
It is worth drawing the reader’s attention to the fact that throughout its entire existence, the Committee has decided to make a public statement regarding only three countries. The first was Turkey (1996)[ii] in connection with the authorities’ inaction in combating ill-treatment in police stations; the second was Russia (2001)[iii] in connection with the situation in Chechnya, where mass torture was practised in detention centres as a result of the Russian-Chechen military conflict; and the third, relatively recently, was Greece (2011)[iv] in connection with the horrific conditions of detention in special centres for migrants (duration of detention, joint detention of men with women, etc.).
Thus, Ukraine has become the first country in the history of the CPT to be the object of a public statement by the Committee due to poor cooperation in improving the situation in prisons. In this, our state has truly become an exception. Specifically, the CPT was particularly alarmed by the brazen intimidation of convicts by prison administrations (or by other convicts at their instigation) before, after, and even during its visit. Such actions were carried out with the aim of preventing convicts from communicating ‘in the wrong direction’ (in Alekseevka Colony No. 25 and Strizhavka Colony No. 81).
However, this is not the only motive. As can be seen from the Report itself, it raises a mass of other serious, systemic problems of the domestic criminal-executive system. Conditions of detention in prisons, torture, the unacceptable attitude of staff towards convicts, their working conditions, corruption, the situation of women and men sentenced to life imprisonment, and even the unsatisfactory order and conditions of service for prison staff—all these became the subject of the Committee’s concern.
It is also worth noting that the CPT does not often dare to speak about torture in penitentiary institutions. For the most part, in its practice, remarks about torture are made regarding police agencies and their stations. Nevertheless, the 2012 Report describes the use of torture in penal colonies, and this is emphasised as a point of concern. The reader’s attention should not miss the fact that only the European Court of Human Rights (ECtHR) can officially recognise the presence or absence of torture in each specific case, and therefore, this does not fall within the Committee’s competence. However, it has the right to emphasise that certain treatment may potentially be considered torture, which it did in Paragraph 16 of the Report (regarding Alekseevka Colony No. 25) and Paragraph 17 (regarding Strizhavka Penal Colony No. 81). In the future, such remarks of theirs, as ECtHR practice shows, will most likely be able to form the basis of decisions against Ukraine and, moreover, serve as a kind of ‘evidence’ of the presence of torture in these colonies when violations of the rights of Ukrainian convicts are established by that court.
The 2012 visit, like the report about it, was also distinguished by the fact that during it, for the first time in the Committee’s history, torture instruments were found in a prison (in Strizhavka Colony No. 81). Previously, this had happened only in police stations. Photographs of these objects, by the way, are available on the CPT website[v]. Among them are wooden sticks wrapped in paper or plastic wrap, a wooden oar used for stirring food in the kitchen, etc. The prison administration’s explanation that all this was used by them to prop up plants is laughable. Admittedly, the Committee’s delegation simply called such claims ‘frankly unconvincing’.
Interestingly, the unofficial translation by the State Penitentiary Service[vi] contains neither these photographs nor any indication at all of the existence of appendices to the 2013 Report, among which, in particular, is an appendix with consolidated recommendations for our country (which are usually only highlighted in the report itself but not systematised) and the aforementioned photographs.
In any case, the reader will be able to familiarise themselves with all the problems raised in the Report by reading the author’s translation[vii]. I would like to warn everyone against using the unofficial translation of the State Penitentiary Service due to its inadequacy to the original. Moreover, it is so poor that it causes concern regarding the future fate of the CPT’s recommendations. Its lexical, stylistic, orthographic, and even semantic construction leaves much to be desired.
It is not surprising that penitentiary staff who work ‘on the ground’ and who do not like reading documents of this kind anyway[viii] ‘reached at most the fifth or sixth page’[ix]. But a subject of particular concern is not the habitual lack of proper familiarisation by staff in the field, but the prospect of implementing the recommendations at the highest level. The problem is that even in the translation of the recommendations (the Report has a kind of ‘descriptive part’ and the actual ‘recommendations’ that must be implemented), there are errors that not only distort their original meaning but also negate it entirely or change it to the opposite. Under these circumstances, one can only hope that it will be the original recommendations that are implemented in the future, not their translations. However, the negative of the high probability of implementing incorrectly translated recommendations is, nevertheless, negligible compared to the systematic unwillingness to resolve the problems the Committee pointed out in both its recent and old recommendations. Their implementation in practice has not become a priority for the prison department at all. To verify this, it is sufficient just to refer to previous reports and relate the recommendations contained in them to the real state of affairs in the criminal-executive system. And never mind previous reports, it is enough just to read the response provided by the government to the Report. It is very poor in view of the number and seriousness of the Committee’s remarks[x] and in comparison with the responses of other countries (not only the most developed Council of Europe member states[xi]).
If we turn to specific examples of translation blunders, everyone has the opportunity to see for themselves how variegated and confusing it is. If one describes one’s own observations, blatant errors attract attention even from the very title of the Committee. In the document by which it was actually established—the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment—its name is translated as the European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment[xii].
Analysing the recommendations themselves, we will cite only examples of translations, albeit without comments, which are hardly needed.
In Paragraph 7, ‘The Committee would also like to receive detailed information from the Ukrainian authorities regarding the use of audio monitoring in penitentiary institutions, including copies of relevant regulations’, the word ‘audio monitoring’ is translated as ‘video surveillance’.
Paragraph 30 contains a recommendation: ‘whenever injuries are recorded that are consistent with convicts’ allegations of ill-treatment (or if they indicate ill-treatment even in the absence of allegations), the record should be brought to the attention of the prosecutor’s office, regardless of the prisoner’s own wishes (italics mine. — V.Ch.)’—in the translation, it says ‘…the record must be constantly monitored by the relevant authorities in accordance with the convict’s decision’.
In Paragraph 31, ‘In cases where behaviour is determined by the state of health of prisoners (italics mine. — V.Ch.), penitentiary staff must seek medical assistance and follow the instructions of healthcare professionals’ became ‘…if the convict is in a state of emotional agitation…’.
In Paragraph 39, ‘The Committee recommends, in the medium term, exploring the feasibility of fully separating such units from the prosecutor’s office with the aim of creating a truly independent specialised body for investigations of this type’ became ‘The Committee recommends checking the transparency of functioning, in the medium term, of such a unit fully separated from the Prosecutor’s Office of Ukraine, thus creating an independent agency for investigating these kinds of cases (all orthography preserved. — V.Ch.)’.
In Paragraph 46, ‘The Committee calls upon the Ukrainian authorities to continue their efforts to improve the state of repair of cells for life-sentenced prisoners in Colony No. 89’ is translated as ‘the committee welcomes the efforts of the Ukrainian authorities to carry out repairs of living premises for "lifers" in VK No. 89’.
In Paragraph 49, ‘guard dogs should not be used systematically during duties involving direct contact with prisoners (italics mine. — V.Ch.) in prisons. The Committee recommends ending the systematic practice of using service dogs in the above-mentioned circumstances. If necessary, relevant regulations should be amended’—in the translation, the highlighted part is translated as ‘including direct contact’.
In Paragraph 57, ‘in the event that a convict is subjected to disciplinary punishment in the form of placement in a disciplinary isolation ward for more than 15 days (10 days for women) several times in a row, a proper pause should be taken every 10/15 days before a new disciplinary sanction is applied’ is translated as ‘in the event that a convict positively serves a disciplinary punishment for 15 days (10 days for women), the disciplinary sanction against the convict must be terminated at the limit of 15/10 days’.
In Paragraph 57, ‘a convict’s decision to exercise or not to exercise their rights should not be subject to disciplinary punishment’ is translated as ‘a convict’s choice regarding learning whether their rights are being fulfilled/not fulfilled should not be subject to disciplinary sanctions’ (try to make sense of that!).
In Paragraph 57, ‘Measures should be taken to ensure that from the moment a decision is made to place someone in a cell-type room or an isolation ward, a review of these sanctions should be carried out at least after the first month of their service’ became ‘Measures must be taken for the regular review of the imposition of disciplinary sanctions on a convict within the first month after the relevant decision is made’.
The distortions concern not only the recommendation part but also the descriptive part of the report. A mass of blunders are partially decorative and do not pose a particular threat to the understanding of the remarks and their implementation, such as, for example, Paragraph 6, where instead of ‘during the visit, the CPT delegation received a good level of cooperation from the central authorities’, ‘good’ is replaced by ‘extraordinary’. However, at the same time, many sentences describing and setting out circumstances, etc., are unacceptable. From here, everyone can define for themselves how substantial or insubstantial the distortion of content is.
In the ‘Contents’ section, ‘immediate remarks in accordance with Article 8, Paragraph 5 of the Convention’ is translated simply as ‘remarks…’.
In Paragraph 3, in the phrase ‘the main purpose of the visit was to check how prisoners serving sentences (including life imprisonment) in correctional colonies are treated’, ‘correctional colonies’ is translated as ‘educational’.
In Paragraph 7, ‘However, cooperation with the delegation by staff in the visited facilities can at best be described as guarded’ is translated as ‘However, the level of cooperation by the staff of correctional colonies can be described as ambiguous (orthography preserved. — V.Ch.)’.
In Paragraph 7, ‘In Colony No. 54, staff and convicts helping staff undoubtedly questioned convicts regarding interviews with the delegation’—instead of ‘questioned’, the word ‘asked’ was used.
In Paragraph 8, ‘The Committee continues to receive reports of intimidation of convicts (including threats of death (italics mine. — V.Ch.)) by penitentiary staff’—the highlighted part turned into ‘physical violence’.
In Paragraph 8, ‘the delegation expressed serious concern’ became ‘the delegation expressed concern’.
In Paragraph 13, ‘the interviewed prisoners were satisfied with the preventive measures taken by the authorities after their complaints and stressed the absence of similar incidents subsequently’—in the translation, ‘the administration investigated the convicts’ complaints of beatings and reported that there were no incidents at all’.
In Paragraph 17, ‘In some cases, the alleged ill-treatment was of such severity that it may be qualified as torture (e.g., severe beatings, prolonged application of handcuffs in uncomfortable positions, dousing convicts with water under pressure while they were outside for a long time in winter (italics mine. — V.Ch.))’—became ‘…dousing convicts with water under pressure from fire hoses with the premises doors open in the winter period’.
In Paragraph 17, ‘The Committee also received many complaints regarding the use of solitary confinement for up to several days, in tightly fastened handcuffs in one of the small rooms located in the basement of the medical unit’—became ‘Complaints were also received regarding solitary confinement for several days in an empty cell (with handcuffs on their hands) located in the basement premises of the hospital at VK No. 81’.
In Paragraph 18, ‘Convicts were allegedly forced to carry out physical exercises until exhaustion (italics mine. — V.Ch.), regardless of their state of health…’—became ‘…perform various works until exhaustion’.
In Paragraph 18, ‘Of particular concern are complaints from several convicts according to which they were specifically instructed by staff to attack or exert excessive pressure on other convicts (italics mine. — V.Ch.)’—became ‘…insult and exert pressure on other convicts’.
In Paragraph 21, ‘interventions of this type should be video-recorded (e.g., by handheld cameras, as part of the equipment of the relevant penitentiary officers) (italics mine. — V.Ch.)’—became ‘…each of the tactical video recording cameras must be mounted on each of the protective helmets’.
In Paragraph 26, ‘This is partly linked to the impossibility for prisoners to fulfil the quota, which many prisoners considered unrealistic’—is deleted from the translation entirely.
In Paragraph 27, ‘As was the case in the past, the delegation received a number of allegations of staff corruption (e.g., extortion by prison administration of payment to facilitate parole, double-entry bookkeeping system (italics mine. — V.Ch.) regarding paid work of prisoners)’—became ‘…, a double tariff for labour payment’.
In Paragraph 56, ‘The delegation noted that in Colony No. 25, during the first eleven months of 2012, convicts were placed in a disciplinary isolation ward 651 times and 91 times in a cell-type room, and there were 369 placements in a disciplinary isolation ward and 50 placements in a cell-type room for the same period in Colony No. 81’—turned into ‘…at VK No. 25, the disciplinary isolation ward was filled with (italics mine. — V.Ch.) 651 places and 91 places in the cell-type room, in VK No. 81 for the same period in the disciplinary isolation ward—369 places and in the cell-type room—50’.
In Paragraph 60, ‘…patients in this ward were served not by qualified staff, but by other convict-sanitarians, to whom tasks were assigned that should be performed only by a medical professional (e.g., administering pills and injections (italics mine. — V.Ch.), as well as setting up IV drips)’—became ‘…distribution of medicine by other convicts…’.
This is not even half of the examples of incompetence, but there is no point in listing them all. The main thing I want to show is not even that Ukrainian-speaking readers were introduced to the report through a crooked mirror, but that it seems to be through this very mirror that penitentiary officers, both at the national and local levels, will get acquainted with the Report’s provisions, implement them, and take them into account. One can guess the final result with a high degree of probability.
It is obvious that the implementation of the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment must become one of the priority tasks of the State Penitentiary Service of Ukraine and its subordinate bodies and institutions at the current stage of its development. Unfortunately, these recommendations still remain an empty phrase for the penitentiary leadership today. The non-seriousness of their approach is evidenced not only by a mass of unimplemented recommendations from previous years but also by the same negligent attitude towards the translation described, especially the translation of the recommendations themselves, and by the practically worthless response—in comparison with the examples of other countries—of the SPSU to the remarks expressed by the Committee.
The implementation of CPT recommendations should take place alongside the execution of ECtHR decisions, which is currently being carried out inefficiently and unprofessionally[xiii]. Necessary, proper, and powerful efforts must be directed towards resolving these two tasks and, in the first place, the political will of Oleksandr Lisitskov and his deputies—Serhiy Sydorenko and Oleksandr Duka. I think that if the outlined problems were given at least as much attention as industrial production in penal institutions and the sale of products, we would not have to read such a sad and shameful report as the 2013 CPT report.
Thus, without changing the priorities of the penitentiary service towards optimising its activities so that human rights become one of its primary directions, there can be no talk of a true reform of the penal system. The implementation of international standards and the ensuring of true effectiveness of this system will be impossible. Let us hope that these banal conclusions will one day be heard and taken on board by the State Penitentiary Service of Ukraine.
If this does not happen, then, taking into account the history of the CPT’s functioning, our state will very soon have to deal with the Committee of Ministers of the Council of Europe, which, as a rule, enters the game in the most hopeless cases—for example, when national authorities are approximately as deaf as the Ukrainian one is today.
Vadym Chovhan, Expert of the Kharkiv Human Rights Protection Group
[i] More details about the Committee’s activities and powers (in Ukrainian): http://www.cpt.coe.int/ukrainian.htm
[ii] http://www.cpt.coe.int/documents/tur/1996-34-inf-eng.htm
[iii] http://www.cpt.coe.int/documents/rus/2001-07-10-eng.htm
[iv] http://www.cpt.coe.int/documents/grc/2011-10-inf-eng.htm
[v] Note that photographs are only available in the English version of the report and only in PDF format in Appendix No. 3 at the end: http://www.cpt.coe.int/documents/ukr/2013-23-inf-eng.pdf
[vi] It was precisely this translation, without any mention of an official one, that was linked to on the official website of the SPSU, which, of course, ‘diverted’ the attention of site visitors away from these photographs - http://www.cpt.coe.int/documents/ukr/2013-23-inf-ukr.pdf
[viii] Committee reports are sent to all institutions for the staff’s personal familiarisation. They must familiarise themselves with such documents under their personal signature.
[ix] From personal conversations.
[x] http://www.cpt.coe.int/documents/ukr/2013-24-inf-ukr.pdf
[xi] See, for example, the 2013 response of the Russian Government, where comments are provided on practically every point of the report: http://www.cpt.coe.int/documents/rus/2013-02-inf-rus.pdf
[xii] Although the word ‘torture’ is used in the English-language version, in Ukrainian, there is a fundamental difference between the terms ‘katuvannia’ and ‘tortury’, which lies in the presence or absence of the intended purpose of their application.
[xiii] http://khpg.org/index.php?id=1370666586