What Can We Expect from a Dual System of Penitentiary Inspections?
Under paragraph 9 of Section XV of the Constitution of Ukraine, the prosecution service continues to exercise the function of supervising compliance with the law in the enforcement of court decisions in criminal cases and in the application of other coercive measures involving restrictions on citizens’ personal liberty until laws establishing a dual system of regular penitentiary inspections (DSRPI) come into force.
The legislator, after all, intends to transfer the function of supervising this area of the work of state bodies and institutions to another entity.
That is precisely why Bill No. 16028 of 4 September 2026, currently before the Verkhovna Rada of Ukraine, is both necessary and long awaited.
At the same time, in our view, the provisions of the Draft are worded in such a way that they fail to answer the key question: what, in essence, the new dual system of regular penitentiary inspections ought to be.
We believe this question is fundamental, and it is precisely this question that the legislator must resolve at the level of statute.
It follows from the above provision of the Constitution of Ukraine that the DSRPI is intended specifically to replace the prosecution service in this activity. This is consistent with the overall intention that the prosecution service should be relieved of functions that are not proper to it. Its principal task is to conduct the public prosecution.
If this is accepted as correct, then the new law on the DSRPI must contain provisions setting out what supervision by the inspections is and what its essential content is. Of course, the very concept of supervision gives the legislator a clearly defined point of reference. National legal doctrine recognises supervision as a legal form of activity of authorised state bodies aimed at ensuring legality, law and order, and the protection of citizens’ rights and freedoms. Its principal feature is that the entities exercising such supervision do not interfere directly in the activities of the bodies or institutions under supervision.
Therefore, in formulating the basic concepts of the Draft and in building the system of inspections, the legislator must describe the essence of supervision clearly and unambiguously.
Accordingly, the essence of supervision should determine the range of bodies or institutions that exercise it, as well as the entire procedure and mechanisms for responding to identified violations, the consequences of such responses, and liability for failure to comply with the instructions issued by the inspecting entities.
Unfortunately, the current version of the Draft contains many contradictory and inconsistent provisions.
First and foremost, the very definition of the DSRPI and its tasks does not set out the attributive features of the supervision it exercises, nor does it emphasise the particular characteristics of that supervision. The definitions conflate the concepts of supervision and control. They are used as though they were synonymous, which is incorrect. The question of whether the DSRPI interferes in the activities of the entities under supervision remains unresolved.
The second significant problem is the range of entities included in the DSRPI.
To begin with, in defining this range of entities, the drafters introduce confusion and uncertainty. The title of the legislative act and the very idea enshrined in the Constitution indicate that the new supervision should focus first and foremost on penitentiary institutions. The term is etymologically linked precisely to the system of institutions that execute criminal sentences. If this is accepted as correct, then the inclusion among these entities of bodies and institutions that have nothing to do with the execution of criminal sentences is, to say the least, surprising.
Furthermore, the entities of the first tier of the system — administrative supervision — are predominantly law enforcement and security agencies vested with powers relating to the use of mechanisms of state coercion. This is wrong for a whole range of reasons. The first concerns the competence of the bodies and institutions in question. The authorised entities include the bodies of the SBU, the National Police, the State Criminal Executive Service itself, the State Migration Service of Ukraine, and so on. These bodies have no supervisory powers and cannot assess the extent to which prisoners’ rights are respected, since they themselves are involved in applying coercive mechanisms to such persons. This results in law enforcement officers being granted powers that are not proper to them, as well as in the expansion and ‘universalisation’ of their competence — that is, a violation of the principle of the separation and mutual balancing of the powers of state bodies, and law enforcement bodies all the more so.
A situation arises in which the security forces place a person in a place of deprivation of liberty and then themselves ‘supervise’ the observance of that person’s rights. In effect, we have a combination of operational investigative and supervisory powers in relation to one and the same people — those who come to the attention of law enforcement. Such a state of affairs will mean that, in practice, no supervision will take place and, given the absence of other supervisory bodies, it will contribute to the ‘closedness’ of places of deprivation of liberty, restrict the ability to monitor their activities, encourage the concealment of violations, and breed impunity and the ‘behind-closed-doors’ character of such places.
If one adds to this the fact that, at the administrative level of inspection, each authorised entity monitors places of deprivation of liberty that fall within its own jurisdiction and within the same chain of command, the situation becomes even worse. Articles 10 to 18 of the Draft are worded in such a way as to give grounds for asserting precisely this. The result is that administrative inspections will lack the administrative and operational capacity to carry out their tasks effectively and independently. Under such conditions, internal inspections turn into a mechanism of periodic visits by colleagues from one unit to another. The effectiveness of such inspections will be close to zero. Not a single violation will ‘escape’ the confines of the relevant departmental system.
Moreover, this runs contrary to the Mandela Rules, the European Convention on Human Rights and other international standards, under which different functions — in particular, investigation, the application of coercion, and the supervision of those subjected to coercive measures — may not be combined in a single body.
The powers of the inspecting entities at this level also raise questions. To describe them briefly, they are predominantly informational in nature. In particular, a power such as taking measures to remedy violations of the law and of the rights of persons held in places of deprivation of liberty raises the question of how these entities are to take such measures, given that the fundamental principle of their supervisory activity is non-interference. Clarifying this would surely require at least an indicative list of the principal means of response.
The Draft introduces reporting by places of deprivation of liberty on the recommendations and observations made to them by the inspecting entities. At the same time, it allows very long periods for considering and implementing recommendations (one year). The exception is cases that pose a threat to the lives of persons held in places of deprivation of liberty. Yet where cases of torture are discovered, the inspecting entities have only one instrument of response: raising the question of initiating an internal investigation. Given the absolute prohibition of torture that prevails in Ukrainian legal doctrine, such a restrained approach on the part of the legislator seems incomprehensible. This is all the more surprising considering that some of the inspecting entities are fully capable of opening criminal proceedings in respect of such facts.
It is likewise unacceptable that representatives of civil society are not involved in conducting administrative inspections. This is wrong both from the standpoint of improving the effectiveness of inspections and because it removes the institution of public oversight from inspection activity and, more broadly, from public scrutiny of places of deprivation of liberty.
Indeed, in its current form, the first tier of inspections renders them opaque and ineffective, and their results closed and heavily dependent on the specific needs of law enforcement agencies.
The second type of inspection is external. As conceived by the legislator, this tier is almost entirely identified with the functions of the National Preventive Mechanism.
This is unacceptable for a number of reasons. Firstly, the NPM is by its very nature different from supervision. The former is primarily oriented towards preventing violations and creating the conditions for continuous constructive dialogue between the administrations of places of deprivation of liberty, the Office of the Ombudsman and those held in places of deprivation of liberty. Secondly, the NPM is, by design, a human rights mechanism that stands closer to the institutions of civil society.
Unlike the NPM, supervision is an instrument of a law enforcement nature, aimed at detecting violations, restoring legality and bringing those responsible to account. It is genuinely inspective in nature, and prevention is not its primary purpose.
Consequently, identifying the NPM with supervision distorts the preventive essence of the NPM and turns it into a supervisory body, which it is not. Or, conversely, one may argue that incorporating the NPM into the inspection system as one of its components turns the second tier of inspections into a purely preventive one, while its findings and opinions take on a markedly discretionary character.
Therefore, in our view, the external inspection system should not coincide with the NPM, but should differ from it in its legal nature and in the composition of its entities.
To resolve this issue, it is necessary to determine what the inspection system is and what its content and essence are.
Under such conditions, the effectiveness of external inspection in the form proposed by the Draft is uncertain and contradictory.
We believe that the future DSRPI should be defined in such a way as to draw a clear and unambiguous distinction between the inspections proper and the activities of the NPM. It is also necessary to describe the possibilities for their cooperation and the coordination of their activities, and to make mandatory provision for public involvement in these processes. Furthermore, it is vital to provide for a procedure for contact and cooperation with those entities that visit places of deprivation of liberty pursuant to Article 24 of the Criminal Executive Code.
In conclusion, we consider that:
— The architecture of the inspection system proposed by the Draft needs to be revised, as it creates the preconditions for the system’s closedness and opacity, and for its crystallisation within individual law enforcement and security agencies;
— The inspecting entities have limited powers and limited capacity to respond to violations;
— The internal inspecting entities combine a whole range of heterogeneous functions whose objects are persons held in places of deprivation of liberty, which significantly reduces the effectiveness of carrying out inspection tasks and violates a whole range of rules and standards;
— The internal inspecting entities have no mechanisms whatsoever for cooperation with representatives of the public, which violates the principle of transparency and public participation in the supervision of places of deprivation of liberty;
— Conflating and identifying external inspection with the NPM mechanism is unacceptable.
Regrettably, our overall conclusion on the bill is that it is unacceptable. The document requires further work and improvement.
Mykhailo Romanov — lawyer at KHPG, Candidate of Legal Sciences, Senior Research Fellow at the Department for the Study of Problems of Criminal Executive Law, Academician V. V. Stashis Scientific Research Institute for the Study of Crime Problems