Open letter of the public human rights organisation “Donetsk Memorial”

Open letter of the public human rights organisation “Donetsk Memorial” to the State Department for the Execution of Sentences.
After the events in the Izyaslav colony No. 31 in January 2007, special forces units were introduced into the colony. This happened in response to mass disobedience by prisoners who refused to eat. “Donetsk Memorial” tried for a year to find out the details of what actually happened. The Department either did not respond to requests or provided very limited information. Immediately after the January events, nearly 40 prisoners, who were considered the initiators of the organisation of the disobedience, were transferred to other colonies. There is quite a lot of unconfirmed evidence that the transfer procedure took place with numerous violations of prisoners’ rights. To clarify the circumstances of the transfer, “Donetsk Memorial” sent a request to the Department, but received a refusal to provide information. Regarding such a refusal, an Open Letter was sent on 19 January 2008 to the head of one of the Department’s directorates, Oleksiy Hryhorovych Dvoinos, the text of which is set out below.

To the Head of the Directorate of the State Department
of Ukraine for the Execution of Sentences
Dvoinos O.G.
Melnykova St., 81, 04050, Kyiv
Copies for information: To the Head of the State Department of Ukraine
for the Execution of Sentences Koshchynets V.V.
To the Prosecutor General of Ukraine Medvedko O.
To the Minister of Justice of Ukraine Onishchuk M.V.
To the Commissioner for Human Rights Karpachova N.I.
To the Verkhovna Rada Committee on Human Rights
To the Committee on Legislative Support of
Law Enforcement Activities

OPEN LETTER

Dear Oleksiy Hryhorovych!

I am grateful for your letter No. 17-8230 of 29 December 2007, which, according to the postmark, was sent only on 11 January 2008.
Firstly, I draw your attention to the fact that in your letter, you are providing a response essentially to my request from 4 October, and in my letter of 24 November, a copy of which was also sent to the Ministry of Justice, I only reminded you of my request.
Secondly, in your letter, you report that I was “repeatedly provided with the relevant general information about the circumstances and motives of the transfer of the prisoners.” At the same time, you refer to three letters of the Department dated 06.06.2007, 08.06.2007, and 14.09.2007. I must immediately point out that the answers provided in these letters were not at all to the questions I asked in the letter of 4 October and about which I reminded in the letter of 24 November, to which you are supposedly providing a response. Therefore, the reference to those letters is incorrect.
Thirdly, it must be emphasised that the numerous responses of the Department are not accidental. Their number reflects the fact that to none of my requests regarding the events in the Izyaslav colony No. 31 in January 2007 did the Department provide a comprehensive response in a timely manner. After all, my first request was sent at the end of January 2007, yet I did not receive a response to it at all. Unfortunately, an established practice has become one where I receive responses only if I send a copy of my request additionally either to the Ministry of Justice or to the Prosecutor General’s Office. Thus, the first small fraction of information about the events in the Izyaslav colony I received in May and only after repeated appeals to the Department with the simultaneous sending of copies of these requests to the Ministry of Justice and the Prosecutor General’s Office. I received a more or less complete answer to my questions, sent back in January, only in September.
I would like to emphasise that it is precisely the incomplete responses of the Department, and sometimes false information (initially, for example, it was claimed that during the introduction of the special forces unit into the Izyaslav colony there were no beatings, but thanks to the Prosecutor General’s Office it turned out that there were victims after all), that give rise to doubts that the agency fully and strictly adheres to the requirements of the legislation in everything.
Precisely in order to make sure whether the norms of the Law and the Constitution were not violated by the agency’s employees during the transfer of the prisoners from the Izyaslav colony, I sent questions in a letter dated 4 October. However, contrary to the requirements of the law, you did not provide a substantive answer to my request.
Perhaps you have a legal right not to provide an answer to my questions?
In your letter, you emphasise that previous responses were “repeatedly” provided to me “taking into account the requirements of Article 32 of the Constitution of Ukraine, Article 23 of the Law of Ukraine ‘On Information,’ the decision of the Constitutional Court of Ukraine of 30.10.1997 regarding the ban on the dissemination of information about a specific person without their consent, as well as the requirements of Art. 104 of the Penal Code of Ukraine” (PCU).
From your letter, it is not clear: is “taking into account the requirements” the citing of grounds for not providing me with an answer or a reference to the norms in accordance with which you provided the information?
Instead, the mentioned norm of the Constitution of Ukraine and the PCU is not an obstacle to providing me with an answer on the merits. I was not asking for private information about individuals, but for certain documents about the agency’s activities, the legality of which I am calling into question. The Department could have provided me with copies of these protocols without violating the norms of the Law of Ukraine “On Information” and at the same time adhering to the requirements of Art. 32 of the Constitution. To do this, it was sufficient to cross out the surnames of the prisoners in the provided copies. Such a practice is normal in democratic countries. Therefore, the reference to the indicated norms cannot be an excuse for not providing the requested information and for your actual violation of the requirements of the Law of Ukraine “On Information.”
Parenthetically, I will note that an illustrative example of the observance of the requirements of the Constitution by the agency’s leaders is the actions of the Head of the Department, Koshchynets. Despite your certified respect for Art. 32 of the Constitution, he has repeatedly named the surnames of prisoners and the crimes for which they are serving sentences during numerous television appearances. Are you sure that Mr Koshchynets received timely written consent from the prisoners named by him for the public announcement of their surnames?
Obviously, in preparing the letter to me, you still could not avoid violating the law. This, in particular, applies to the deadlines for providing me with a response. To my request of 4 October 2007, about which I reminded in a letter of 24 November, you prepared a response, registered it on 29 December, and sent the letter only on 11 January 2008. And this is despite the fact that Art. 33 of the Law of Ukraine “On Information” requires:
The term for studying a request for the possibility of its satisfaction must not exceed ten calendar days.
Within the specified term, the state institution shall inform the requester in writing that their request will be satisfied or that the requested document is not subject to being provided for inspection.
Satisfaction of a request is carried out within a month, unless otherwise provided by law.
The underlined norm of the law is mandatory for execution. But I have not once received a written notice from the Department within ten days regarding the satisfaction of my request or regarding the refusal to satisfy it. Often, the Department also violates the requirement regarding the one-month term for providing a response. Therefore, it is not surprising that your response lay in the Department after its registration until being sent to the post for two weeks, and this is an undoubted violation of the requirements of the law. Although I have examples when your colleagues keep responses signed, registered, but not sent for 40 days or more..

Finally, the main point.
I am convinced of the social significance and importance of substantive answers to my questions, because they directly concern human rights. I asked them to you personally for the first time back in September 2007, and for more than three and a half months, I have been unable to receive a substantive answer.
As a law enforcement structure in which the risk of human rights violations is elevated, the Department, all its structures and employees, including you, must act exclusively within the framework of the law, confirm this with all actions, and, when necessary, inform the public about their actions. Society should not have doubts about the impeccable nature of the actions of all agency employees.
Instead, right now this is very often not the case. The Department and you, as one of its representatives, keep your actions and information that is important to society secret, try to give this illegal concealment an appearance of legality, of concern for the private life of prisoners. At the same time, the Head of the Department publicly and repeatedly brutally violates the requirements of Art. 32 of the Constitution mentioned by you.
The fact of reporting false information in the letter regarding the events in the Izyaslav colony (about the absence of beaten prisoners), and the concealment of the formalisation of the transfer procedure of prisoners to other colonies, increase doubts about the actual observance of prisoners’ rights.
On the other hand, numerous extraordinary events of the last year convincingly testify that in the Department’s institutions, not everything is well with the observance of human rights. Almost always, the Department refutes reports about the alleged beating of prisoners. But very often these refutations are contradictory, unconvincing, and cause justified doubts.
Summing up, I must emphasise: your letter of 29 December 2007 does not provide an answer on the merits of my request. And this precisely is a violation of the requirements of the Law of Ukraine “On Information.” In fact, this letter is a common bureaucratic brush-off, which is not based on the Law.
I insist on being provided as soon as possible with a substantive response to my request regarding the protocols of the Regional and Appellate Commissions, as is stated in my request of 4 October 2007.
I assure you that your reaction to this OPEN LETTER of mine (whether it is a substantive response or the absence of a timely response) will be widely and publicly reported, given the social significance of the requested information for clarifying the level of observance of prisoners’ rights in the agency’s institutions.
The address of our organisation, to which I request the response be sent, is as follows:
Bukalov O., P.O. Box 4836, Donetsk, 83092

Oleksandr Bukalov
Chairman of the Council of “Donetsk Memorial,”
Chairman of the Penitentiary Society of Ukraine

As of 26 April 2008, neither a response nor copies of the Protocols have been provided.