What factors are important for the complaint submission mechanism
The penitentiary system of Ukraine still lacks an effective mechanism for the submission and review of prisoner complaints. Every year, out of one or two thousand complaints submitted to the central office of the State Penitentiary Service, fewer than a dozen are recognised as well-founded. What factors currently influence the complaint procedure, and what recommendations can be proposed to create an effective system for submitting complaints?
The belief held by some prison service management and prosecutors that the absence of complaints is a sign that staff rarely violate prisoners' rights is, in reality, explained by the 'blocking' of channels available to prisoners for lodging complaints. Therefore, the most obvious prerequisite for an effective system of submitting and investigating complaints is the provision of efficient methods for submitting and transmitting complaints to the representatives of the bodies responsible for reviewing them, as well as the assurance of reliable channels for such submissions.
Prison staff are capable of reducing the number of complaints to virtually zero by employing simple means, such as intimidation and the actual non-dispatch of complaints. In many prisons, the most obvious source of a complaint—the prisoner themselves—is too often effectively neutralised.
In any effective complaints system, prisoners must not only feel that they are able to lodge complaints without fear of punishment but also that they are able to do so in practice.
The first problem requiring urgent action is addressing the issue of intimidation or the sense of risk, which can deter a prisoner from reporting their problems; the second is ensuring the existence of practical means to report such problems.
The circle of entities to whom prisoners can pass complaints is actually significantly wider than that defined by law and is not limited to the prosecutor, the Ombudsman, and the European Court of Human Rights. It may also include Members of Parliament, non-governmental organisations, and even monitoring commissions.
The Penitentiary Service must implement effective, practical measures as soon as possible to allow prisoners to submit complaints to a wider range of entities.
Furthermore, prisoners must be made aware of their right to lodge complaints. There are various options for ensuring this right.
How can one influence those prison staff who persistently block the submission of complaints and intimidate prisoners?
To ensure this, two practical measures can be taken: making the act of obstructing the exercise of this right a disciplinary offence for any prison official (including the forced withdrawal of any prisoner's complaint); and obliging domestic monitoring bodies to verify the effectiveness of this mechanism in practice.
However, managing to send a complaint outside the penal institution is only half the battle.
When reviewing complaints, authorities must not merely simulate an inspection but seriously determine what happened in any given case.
The speed of response to a complaint is important. It is crucial in resolving any issues in the context of impunity for human rights violations, especially in cases of ill-treatment; verifying complaints without delay can help maintain confidence in the reliability of the complaints system, both on the part of prisoners and the public at large.
All the mentioned points should be reflected, first and foremost, in the Internal Regulations of penal institutions. But as international experts note, the Regulations emphasise form over substance. This regulatory document contains an excessive amount of detail.
Life in prison is excessively regulated by the Rules.
As noted by Council of Europe expert John Murdoch in the report “Investigation of allegations of ill-treatment in the penitentiary service of Ukraine”:
“Details (in the Rules) obscure principles. The positive intent is diluted (prisoners must treat each other and prison staff politely; get out of bed and greet staff when they enter cells;... remain silent [in the exercise yard]; keep their hands behind their backs when moving outside the cell). Other rules (such as forced solitary confinement of a prisoner by sentence, rather than by the risk they pose) do not comply with European standards. Taken together, the sheer volume and nature of a significant number of rules point to a situation in which regulation is considered more important than instilling professional ethical standards in officers and achieving appropriate changes in their outlook. Many interlocutors agreed that the goal is commendable, but the content and nature of this document do not address the real need to change existing staff behaviour, as the main issue for them will likely be not so much whether a particular model of behaviour is necessary or appropriate, but whether it is required by order or not.”
The study emphasises: “The danger is that the rules will be interpreted in such a way that everything not prohibited is permitted. There is no real sense (perhaps with the exception of a reference to ‘courtesy’) of the need to ensure fundamental respect for every prisoner. These rules are effectively in no way connected to a code of ethics for prison staff.”
Substantial changes to the rules are needed to more clearly define the rights and obligations of prisoners, as well as the duties of prison staff in light of general ethical standards (and the principles contained in the European Prison Rules). A significant portion of the details can be moved to annexes or staff job descriptions.
To create an effective system for submitting and reviewing complaints, it is proposed to follow these recommendations.
1. Ensure the possibility of unimpeded submission of complaints by prisoners.
2. Ensure that complainants are not subjected to harassment, intimidation, or other psychological pressure.
3. Correspondence regarding complaints should be treated as privileged, and any attempts to obstruct it, in particular the intentional destruction of complaints, must lead to liability for officials.
4. Actions by institution staff that obstruct the submission of complaints by prisoners, or involve their intimidation or punishment for communicating with monitoring bodies, must be classified as a separate disciplinary offence.
5. The superiors of prison staff who obstruct the submission of complaints, or who resort to intimidation or punishment of prisoners for lodging complaints, must—in the event of failure to respond to such actions by subordinates—be suspended from their duties for a period of one to six months with a corresponding reduction in salary.
6. An atmosphere must be created in which responsibility for ignoring complaints or obstructing their submission is considered to lie not only with the staff who commit such acts but also with all individuals who knew or should have known about the obstruction and failed to respond.
7. Any attempts to interfere with correspondence related to the submission of complaints, in particular the intentional destruction of correspondence, must entail liability for the responsible officials.
8. Each prison should have a specially appointed official responsible for ensuring the unhindered dispatch of complaints. These officials must also be held accountable for the prompt dispatch of correspondence to the addressee.
9. The circle of persons to whom prisoners and those in custody have the right to send complaints without review by institution administration representatives must be expanded. This should include Members of Parliament, non-governmental organisations, Penitentiary Service bodies, lawyers, and international institutions. The receipt of letters should be logged. These records should be available for review by monitoring bodies.
10. Meetings of prisoners with the prosecutor and representatives of monitoring bodies must take place in conditions that ensure the confidentiality of the discussion. Prison staff must not attempt to learn the content of such communication from the prisoner. Any such attempts must entail disciplinary action.
11. Prosecutors are obliged to provide written responses to the complaints of prisoners. They must be held accountable for simulating the review of complaints.
12. The superiors of prosecutors who do not properly review prisoners' complaints or who simulate such a review, as well as those who fail to respond to prison staff's obstruction of complaints, must be held accountable.
13. The review of complaints should take place, where possible, with the participation of the complainant.
14. Instructions or recommendations regarding the procedure and timeframes for the investigation of complaints by bodies of the State Penitentiary Service of Ukraine must be implemented. These instructions must be available to prisoners.
15. The Penitentiary Service must maintain a record of complaint data and regularly (e.g., every six months) publish reports on the number of complaints submitted and reviewed, their subject matter, and the measures taken as a result of their review.
16. The possibility of creating an independent body to investigate all complaints should be considered, which would possess operational independence and oversee investigations, especially in cases of ill-treatment, including oversight of the review of such complaints by the prosecutor's office.
17. It is important to pay immediate attention to issues of selection, appointment, and ongoing training of prison staff, particularly regarding the handling of complaints.
18. It is advisable to issue and distribute in sufficient quantities among prisoners leaflets containing detailed complaint submission procedures, guarantees of their dispatch and review, and information about the liability for obstructing the dispatch of complaints.
This material was prepared within the framework of the project “Implementation of Public Control in Prisons of Donetsk Oblast”, which is supported by the Democracy Development Fund of the US Embassy in Ukraine. The views of the authors do not necessarily coincide with the official position of the US government.