Comments on V. Palahniuk’s Interview

What did the head of the penitentiary service say, and what did he leave unsaid in his interview? Impressions from a fascinating read

In February 2016, the head of the State Penitentiary Service of Ukraine (hereinafter – SpsU), V. M. Palahniuk, gave an interview titled “Head of the Penitentiary Service Palahniuk: Under the ‘Savchenko Law’ we will release 1,000 murderers. It will cost the state dearly.” In it, he expressed his views on a number of topical issues regarding the agency’s activities. This interview was published on the SpsU website (http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/820330).

Recently, there has been increased attention paid to the agency’s activities, and therefore, the position of the agency’s head on topical issues is of great importance, as it allows one to understand the specificities of both the service head’s work and the structure subordinate to him.

The following is an attempt to analyse and comment on some of the statements made by the head of the SpsU and to grasp what they might mean and what they testify to. The topics discussed in the interview are conditionally divided into three content blocks. The comments provided on the statements of the SpsU head represent the author’s own opinion and do not claim to be indisputable. However, the author hopes they will be of interest to people who care about the system.

Implementation of the “Savchenko Law”

The statements made by the head of the penitentiary service regarding the application of the “Savchenko Law” are quite interesting.

The first statement.

“About 50,000 convicts fall under the provisions of this law, and in the near future, almost 6,000 people will be released early under this law. ... To date, 1,605 people (have been released). The courts have reduced the sentences of another 3,782 people. In the future, in addition to these, another 44,000 people will fall under this law. A smaller portion of them, about 3,000, will be released, while the rest will have their terms of imprisonment reduced.”

The head of the agency is not mistaken regarding the number of people falling under the “Savchenko Law.” But is this number too large?

It is obvious that of the total number of 53,000 convicts in Ukraine, almost everyone has spent time in a pre-trial detention centre (this is the time during the investigation of the case and its consideration in court). Thus, in accordance with the “Savchenko Law,” their term of imprisonment should be reduced by the time spent in the pre-trial detention centre for all of them. Therefore, it is not surprising that almost all convicts fall under the law. This is normal.

How many of the nearly 50,000 convicts falling under the “Savchenko Law” will actually be released?

As strange as it may seem, not only the 6,000 people named by the head of the SpsU should be released, but almost all 50,000 convicts who have spent time in a pre-trial detention centre. However, they will not be released all at once and right now, but sooner or later, because all of them (except those serving life sentences) have a fixed term of imprisonment that will eventually expire for each of them. And so, some of those whose sentence is recalculated under the “Savchenko Law” will be released immediately, some in a month, some in two years, and some in 10–12 years.

Conversely, talking about “early” release under the “Savchenko Law” is not entirely accurate. The convicts will be released, but not “early”; they will be released on time, having served the sentence determined by the court. It is just that this term—due to the recalculation under the “Savchenko Law”—is somewhat shorter than the term previously established by the court: for some by two months, for others by five. Of course, there will be those whose reduction will amount to a year or even two. Only those among these convicts who are presented for parole after the recalculation of their sentence will be able to leave “early.” They are the ones who will have a chance to leave specifically “early”—if the court so decides.

Perhaps Volodymyr Mykolaiovych expressed himself inaccurately and actually meant that after the recalculation of sentences under the “Savchenko Law,” there are already 6,000 people whose time spent in a pre-trial detention centre turns out to be longer than the period remaining for the convict to serve according to the court’s verdict. In that case, such a convict must be released because their term of imprisonment has expired. But this relief will only apply to those who, as a rule, have only a few months left until release, although there will surely be a few who have a year or two left.

What, then, does Mr Palahniuk predict?

“According to forecasts, in the near future we are releasing 809 murderers and almost 500 people convicted of causing bodily harm that led to the victim’s death—these are practically the same murderers... We will release almost 1,000 robbers and almost 200 rapists. These are the results of the adoption of this law.”

It sounds alarming, almost doomed. As if without this law, these criminals would still be sitting in prison, but then the “Savchenko Law” happened... Is it really so?

In reality, there are initial results from the application of the “Savchenko Law.” According to the SpsU, as of 26 February 2016, the law has been applied to 20,446 people (more than 40% of those who fall under the law), with 3,985 convicts released from execution-of-sentence institutions, including:

637 people convicted of intentional murder,

372 people convicted of intentional grievous bodily harm,

429 people convicted of drug-related crimes,

843 people convicted of robbery,

599 people convicted of larceny,

847 people convicted of theft,

9 people convicted of crimes against the foundations of national security.

And what would have happened if it weren’t for this damned law? Should we be terrified by the number of convicts who will be released in the coming months?

Mr Palahniuk surely knows that the agency released over 21,000 people in 2015 (and over 40,000 in 2014), including more than 4,500 people convicted of murder. This is confirmed by the agency’s own data, as the number of people in prisons decreased by 3,600 in 2015—from 14,200 to 10,600. Taking into account the number of those newly convicted of murder in 2015, the number of people convicted of murder and released during the year is at least 4,500. In addition to them, more than 3,000 people convicted of intentional grievous bodily harm were released from prisons last year—in Palahniuk’s words, those same “murderers”? (totaling over 7,500 people), and nearly a thousand rapists, plus several thousand robbers were also released. Obviously, this is several times higher than the number of those being released due to the application of the “Savchenko Law,” and even then, only slightly earlier. But the fact is undeniable: for some reason, the head of the SpsU is constantly stoking fear.

Anyone who knows arithmetic can easily calculate that in 2015, 1,767 people were released every month; for two months, that is over 3,500 people. Currently, 3,985 people have been released in the two months the law has been in effect. That is only 400 or so more than were released in two months in 2015 without the “Savchenko Law.” And these additional four hundred released individuals (which is actually the weekly quota of released persons in 2015 or the three-day “quota” in 2014) create, in the opinion of the SpsU head, a crazily incredible danger that will cost the state very dearly? Is this an adequate perception of reality?

The head of the SpsU stokes fear by constantly repeating that convicts are being released because of the “Savchenko Law.” Is it acceptable to speak like that? By no means! This law does not “release” anyone! The convicts, even the most dangerous ones, will be released anyway because their term of imprisonment determined by the court will come to an end. However, the head of the SpsU tries to create the impression that if it weren’t for the “Savchenko Law,” these criminals would—sort of—never have been released. And then, all of a sudden—the law appeared, and criminals are being released under it.

Why twist the facts and scare the citizens? What is Mr Palahniuk’s interest in this?

No less interesting in the interview are other statements by the SpsU head:

“And now I will tell you this figure: of the 6,000 convicts who will be released, one in 6 was convicted of murder.

80% of the number of people who will be released are those convicted of grave and especially grave crimes. These are dangerous criminals. We are even releasing those who were convicted of ‘banditry.’ Now 30 such people will come out. We will release about 10 people who in the 90s organized criminal groups, were involved in murders, extortion...”

Such statements should cause alarm among citizens, forcing them to worry about their own safety, since from the SpsU head’s statements, one might get the impression that the “Savchenko Law” is lenient specifically towards “murderers” and “rapists.” It is precisely this circumstance that opponents of the law emphasise.

Conversely, it is enough to look at the criminogenic composition of people sentenced to imprisonment. Of their total number of 53,000 people as of 1 January 2016 (in parentheses—a year ago), those held in colonies were:

people convicted of intentional murder—10,600 (a year ago—14,200 people);

people convicted of intentional grievous bodily harm—4,700 people (7,400 people);

people convicted of robbery, larceny, and extortion—13,500 people (15,200 people);

people convicted of rape—1,400 people (2,100 people).

According to the provided data, a little more than half of the convicts are serving sentences for violent crimes (but certainly not 70–80%), with the number of people convicted of murder accounting for 20%. That is, one in five. What is surprising about the fact that “one in 6 who will be released was convicted of murder”? And how should it be, if those are precisely the criminals sitting in prisons?

I think the answer to the question of why Mr Palahniuk is so worried that about a thousand people convicted of murder will be released in the coming months due to the recalculation of sentences under the “Savchenko Law,” while he did not say a word about the more than 7,500 such same “murderers” and people convicted of inflicting grievous bodily harm released in 2015, should be very interesting.

Are those 7,500 people released last year not as terrible as the one thousand this year? It seems that Mr Palahniuk has some powerful interest in intimidating citizens with “murderers” who are being released supposedly because of the “Savchenko Law.”

The following statement by Volodymyr Mykolaiovych, which is surely meant to alarm readers, is also worthy of attention:

“I think that this law will cost the state very dearly, because, why deny it, at least 60% of the released will soon return to prison. But their actions will entail new innocent human casualties. ...currently the question of their employment and housing is not being resolved.”

A marvellous admission!

With this statement, a high-ranking state official admits that the educational work in the prisons of the agency he heads and for which he receives a salary is at an extremely poor level, and about 60% of “unreformed” criminals are released. He also states that released persons, after leaving prison, have no reason to hope for state support—the state practically does nothing for their resocialisation or even minimal support: they have nowhere to sleep, nowhere to be employed with state assistance (currently the question of their employment and housing is not being resolved), and the state does not provide them with any financial support in the first weeks after release. Instead, the state expects them, in such conditions, not to return to the path of committing crimes. And if they do commit crimes, it punishes them. Thus, for its own irresponsibility regarding released persons, the state punishes them. Perhaps some of them would have committed new crimes in any case, even if the state had provided them with housing, work, and support. But I am sure there are few such people. Many of the 60% mentioned by Palahniuk are ready to lead a law-abiding life. But they need support, which the state does not provide, only reproaching them with the fact that “at least 60% of the released will soon return to prison. But their actions will entail new innocent human casualties.” And these casualties, the agency head believes, are on the conscience of the criminals alone. Whereas in fact, the state’s contribution to the unfortunate course of events and the fates of the released is quite significant. Yet, for some reason, people are not intimidated by this state indifference.

Why should one believe officials that safety in society primarily depends on the fact that 10–15% of the currently convicted people will be released a few months earlier? And where is the effect of the correctional work of penal colonies, of state support for released persons? Rhetorical questions.

The terms used by the head of the SpsU are very interesting. He says:

“It is necessary to take into account that the reformation of the Ministry of Internal Affairs, the prosecutor’s office, and the judicial system is currently underway, and this, let’s say, shows that the law enforcement centre in the state is not yet quite established and is working in a transitional mode.”

But what is a “law enforcement centre”? Where is it located? What does it consist of? How does a “transitional mode” differ from another “mode”? How long do we have to wait for it to end?

The head of the agency’s professional level is clearly shown by his thoughts on the motives for passing the law. He notes:

“As far as I understand, this so-called ‘Savchenko Law’ was passed with one goal—to release the innocent and compensate them for the difficult conditions of staying in isolation. But I do not see the innocent being released.”

It is interesting to find out where the head of the agency got the idea that the law was passed “with one goal—to release the innocent and compensate them for the difficult conditions of staying in isolation.” The Explanatory Note to the draft law states quite clearly:

The aim and tasks of adopting this draft law are:

- restoring the rights and legitimate interests of people sentenced to imprisonment whose rights were significantly limited during their detention;

- helping to reduce the terms of detention in pre-trial detention centres for citizens who are under investigation and trial;

- saving budgetary funds in connection with the reduction of the number of people held in pre-trial detention centres.

The authors of the draft law unequivocally declare that this law is aimed at restoring the rights of convicted persons. The head of the agency did not even manage to read the motives for passing the law. So it is not surprising that he does not see what he imagined for himself: “I do not see the innocent being released.”

It is worth asking: where could the “innocent” even have come from within the walls of the agency’s institutions? Fine, let’s assume they are there. But if Palahniuk considers it normal to “compensate the innocent for the difficult conditions of staying in isolation” due to their stay in a pre-trial detention centre, then is it not necessary to compensate the guilty for these difficult conditions? Because they are guilty? Let them endure everything since they are guilty? Perhaps these words of the official are a public demonstration by the service head of the standards of prisoner treatment by institution staff?

And one more wonderful statement that demonstrates the level of the agency head’s understanding of the law-making process:

“They passed (the law) supposedly in order to reduce the number of people arrested in pre-trial detention centres. But only those who are convicted are being released. There are almost no convicts in pre-trial detention centres, only arrested persons, those under investigation, and those on trial, and they are not being released. We have 29 pre-trial detention centres, with almost 16,000 prisoners held in them. At present, only 160 people have been released from pre-trial detention centres. This has absolutely not affected the loading or unloading of pre-trial detention centres.”

The ignorance of the head of the penitentiary service about the impact of the main points of the passed law is striking!

In the same Explanatory Note, the expected consequences of adopting the draft law are clearly defined:

“The adoption of the draft law... will stimulate law enforcement agencies and courts to promptly investigate and consider criminal proceedings and will significantly reduce the possibilities for unjustified long-term detention of persons in pre-trial detention centres.”

Therefore, a reduction in the number of people in pre-trial detention centres as a result of adopting the draft law is expected, first and foremost, not through the simple release of people currently in pre-trial detention, but through a reduction in the number of people held in pre-trial detention centres without justification, through the timely transfer of prisoners from pre-trial detention centres to colonies. Obviously, these consequences can become noticeable within at least a few months, not in a month or two. One can only fail to understand this if there is an absolute lack of desire to understand it. Or in the case of complete professional incompetence.

It is telling that the following arguments in favour of adopting the draft law remained completely ignored by Palahniuk:

“Modern conditions for the detention of persons in pre-trial detention centres are inadequate. In particular, the cells in which people are held are often overcrowded and do not meet minimum sanitary requirements. Such conditions of detention humiliate the dignity of persons who have not yet been found guilty by a court of committing a crime. Persons may spend years in pre-trial detention centres without being convicted, which is unacceptable in view of the constitutionally established presumption of innocence.”

Well, one can only guess about the understanding of dignity and the presumption of innocence by the head of the SpsU—he does not even mention these phrases.

Also worthy of attention are his explanations:

“But I repeat once again that when this law was passed, I was not in the Verkhovna Rada at all. This law was passed when I was on vacation. And I was not even at the meeting of the relevant committee.”

Now it is clear why Mr Palahniuk “does not understand” the law: he not only did not read the Explanatory Note to the draft law, he did not even appear at the meeting of the relevant Verkhovna Rada committee. He also did not send anyone from the agency to the meeting because, apparently, besides him, there is no one in the agency to deal with laws. In such a situation, of course, it is very difficult to keep track of the parliamentarians’ decisions.

ON TORTURE AND FANTASIES

At all times, the heads of the prison service have denied the facts of prisoner torture; they were not bothered by the presence of testimony (saying such testimony is not true), witnesses (clearly, the witnesses are lying), photos, or even cases of prisoner deaths. Decisions of the European Court of Human Rights are also not an argument for them. As are the conclusions of the European Committee for the Prevention of Torture... Mr Palahniuk comments on the Committee’s conclusions regarding what was seen at Penal Colony-100 as follows:

“There were also complaints from the European Committee for the Prevention of Torture as if there were abuse and torture of convicts there. No, they are just made to clean up after themselves there; no one has ‘lackeys’ there; they are guided by the law and internal regulations, not by thieves’ laws.”

In reality, according to V. Palahniuk’s version, there was no torture. Could the head of the service be right? Here is a fragment from this Committee’s Report.

“In the Temnivska Men’s Colony No. 100, the delegation received a number of complaints about the brutal beating of prisoners. Such treatment took place in cell 01 and followed the following scenario: the prisoner’s hands are cuffed behind his back, prison staff put him face down on the floor, pull down his trousers, and beat him on the buttocks with a long wooden truncheon, usually accompanying the beating with verbal abuse. In one case, the prisoner also complained that he was beaten on the soles of his feet, and a medical assistant splashed cold water in his face; in another case, the prisoner claimed that prison staff urinated on his bleeding bare buttocks.

When examined by the delegation’s physician several weeks later, some of these prisoners had wounds confirming the complaints. After such a long time, many injuries caused by beatings of this type should have completely healed and left no traces. The fact that the wounds were still visible, their size, tissue loss, and duration of healing suggest that the initial injuries were serious, with skin tearing, bleeding, swelling, and haematomas.

As shown by medical reports compiled by the health service on the facts of the use of ‘special means’ by staff of the Disciplinary Isolation Ward/Cell-type Room (DIZO/PKT), the use of force was recorded in ten cases between 19 August and 3 September. The medical reports did not mention any statements by the prisoners or the circumstances under which these injuries could have been sustained. Faced with these facts, the chief physician of the health service and the medical assistant were unable to provide plausible explanations for the almost identical injuries, especially those observed on the same day.

The CPT delegation requested a thorough and urgent investigation into the complaints of ill-treatment in cell 01 of the DIZO/PKT unit. The delegation also demanded the immediate cessation of the use of this cell, which is lined with black fabric, soundproof, without windows or ventilation, and equipped only with a ceiling source of artificial light. There is no place for such a cell in a modern penitentiary institution.

The response of officials regarding the investigation requested by the delegation is unacceptable—it was simply stated that the investigation concluded that the use of ‘special means’ complied with Ukrainian legislation and European Prison Rules.

There are grounds to doubt the methods of conducting this investigation, as only the reports of the health service of Colony No. 100 cause, to put it mildly, concern. The CPT emphasises that officials should provide plausible explanations for the causes of injuries sustained by prisoners; such explanations have not been provided yet.”

V. M. Palahniuk explains the actions of the institution’s administration described in the Committee’s Report simply: “they are just made to clean up after themselves there; no one has ‘lackeys’ there.” It is telling that the Committee tries to explain its position in detail, while Mr Palahniuk does not strain himself at all: “No, they are just made to clean up after themselves there.”

Why is it impossible to impartially investigate cases of alleged torture and punish those responsible? The answer is simple: such complaints do not go beyond the institutions, and if they do, the agency’s leadership turns a blind eye to them and boasts (with eyes closed):

“During my tenure, over 1.5 years, there has not been a single criminal case for torture or battery by personnel against convicts. Individual people’s deputies who are currently under investigation, as well as their activists and lawyers, are shouting about alleged torture. These are emotions and the fantasies of individual people.”

There you go!!! Torture in prisons is “the fantasies of individual people.” The fantasies of deputies, and members of the European Committee for the Prevention of Torture, and judges of the European Court of Human Rights (see the case “Karabet and Others v. Ukraine”). How can one manage a system “without fantasies,” Mr Palahniuk demonstrates perfectly in such passages:

“The reformation of the Penitentiary Service must begin with the construction of new pre-trial detention centres, hiring new personnel, and training them. This is the first stage, and the second stage is the institutions for the execution of sentences.”

To the journalist’s question: “when can this process begin?” the service head answers:

“Depends on when funds are allocated for this. After all, the word ‘reformation’ without financial support will simply remain a word.”

A few more wonderful admissions!!!

First, it turns out that the “reformation of the Penitentiary Service” has not even begun. It is supposed to start with the construction of new pre-trial detention centres. Since it has not yet been decided where to build new pre-trial detention centres, who will build them, or when the technical documentation for construction will be ready—the country still has a long way to wait for the beginning of the reform. True, the question arises: what has been happening in the system for the previous twenty-plus years? Including the year and a half of Mr Palahniuk’s leadership?

No, this is probably not reform yet. This is so-so.

Second, it is very convenient to measure the effectiveness of the first stage of reforming the penitentiary service by the pre-trial detention centres built—one can wait five or even ten years for them, promising new pre-trial detention centres all the time and not worrying that someone will accuse one of a lack of reform. As if to say, wait, here we will build new pre-trial detention centres...

And how does the head of the agency see the solution to the problems of institution personnel? Here one must strain to understand Volodymyr Mykolaiovych’s position: on one hand, the agency head notes: “We have already reduced (personnel—Auth.) by 6,000, and there will be further reductions.”

On the other hand, he claims: “The reformation of the Penitentiary Service must begin with the construction of new pre-trial detention centres, hiring new personnel, and training them. This is the first stage.” So, will the personnel be reduced or will it be hired? A mystery.

Unless the agency’s employees can stop worrying about salary increases: if now a junior inspector receives “about 1.6–2 thousand hryvnias,” then the service head “has ideas for the salary to start from 6,000.”

And these ideas should warm the hearts of junior inspectors and other employees. And when will these “ideas” be realised? The answer seems unambiguous: “Depends on when funds are allocated for this.”

ON COMPLIANCE WITH COURT DECISIONS

Perhaps the most interesting moment of the interview, largely telling, is the statements of the SpsU head, which unambiguously reflect his readiness to comply with the law, using the example of his attitude towards court decisions that have entered into force. If such decisions concern other people—Volodymyr Mykolaiovych is firm:

“We are an executive body, and our function is, first of all, the execution of court decisions on serving sentences by those convicts.”

But the SpsU head has a completely different approach to a court decision that has entered into force regarding himself. We are talking about the lawsuit against the court by the former head of the service, Starenkyi, regarding his reinstatement as head of the penitentiary service. Regarding this lawsuit, Palahniuk himself notes: “by the decision of the appellate instance, the claim (of Starenkyi regarding reinstatement to the position—Auth.) was satisfied.”

That is, the decision entered into force. It must be executed. But in this case, for the official, the decision of his superiors turns out to be more important than the court’s valid decision; he is sure that he “can be reinstated in the position only by an order of the Cabinet of Ministers.”

And what about the court’s valid decision? For Palahniuk, that is secondary. If the decision concerned someone else—well then, “our function is, first of all, the execution of court decisions.” But regarding the head of the service himself, it is not the court that has supreme power, but the decision of his superiors: “There will be a government decision, I will execute it and I will agree with it.”

It is not surprising that one of the main rules in the criminal-executive system is, first of all, the unquestioning execution of superiors’ orders, compliance with orders and instructions, even if they contradict the law, the Constitution... Well, and international standards—those are just a toy for lawyers and human rights activists.

Surprisingly, Volodymyr Mykolaiovych’s own words are appropriate here:

“Believe me, this is not just legal nihilism, but, forgive me, stupidity.”

The agency head has the same approaches to the already mentioned presumption of innocence. Here is what he asserts “theoretically”: “By and large, there are still innocent people in pre-trial detention centres; they are just suspected of committing a crime. These are not criminals yet.”

But when it comes to specific residents of a pre-trial detention centre, such as the boy who died in the Lukyanivske pre-trial detention centre on New Year’s Eve, then regarding his possible guilt, the agency head asserts: “The fact that individual political forces made a political prisoner out of him—according to the reports I have, there is no hint of politics here. Here it ‘smells’ of drug addiction, robbery, and kidnapping.”

In a situation where the court has not yet finally examined the evidence of the boy’s guilt, and it is not yet known what the court will eventually say, “jurist” Palahniuk, exclusively “according to reports,” asserts without hesitation: “Here it ‘smells’ of drug addiction, robbery, and kidnapping.”

Such is the presumption of innocence from the head of the agency.

IN CONCLUSION

A couple more remarks should be made about the content of Mr Palahniuk’s interview—namely, about what is missing from it.

There is not a single statement about respecting the rights of prisoners, about the social protection of institution personnel, about personnel corruption and countering it, or about the need for unquestioning adherence to the rule of law by institution personnel. About creating conditions to reduce the recidivism of crimes, first of all about the post-penitentiary system in the country. About problems in the sphere of providing medical services to prisoners, about creating a complaint mechanism, or about implementing the recommendations of the European Committee for the Prevention of Torture.

Perhaps these issues are less important than releasing “murderers” or the bribe-taking judge Zvarych a few months earlier. At least, for the current head of the SpsU, they certainly seem less important.