On the Concept of Reforming the State Penitentiary Service of Ukraine.

On the Concept of Reforming the State Penitentiary Service of Ukraine.
The President of Ukraine, Viktor Yushchenko, by Decree No. 401/2008 of 25 April, approved the
Concept for Reforming the State Penitentiary Service of Ukraine and instructed the Cabinet of Ministers to develop and approve a Comprehensive Target Programme for reforming the State Penitentiary Service within three months.
This is already the “125th” attempt to start reforming the penitentiary service from scratch.
The first took place in 1998 with the creation, by presidential decree of 22 April 1998, of the State Department of Ukraine for the Execution of Sentences on the basis of the Main Directorate for the Execution of Sentences of the Ministry of Internal Affairs of Ukraine. From 12 March 1999, it began to function as an independent central executive body designed to implement a unified state policy in the field of the execution of criminal sentences. By the way, there is still no document in which the concept of a unified state policy in the field of the execution of criminal sentences has been officially and clearly formulated.
In 2003, a new Criminal-Executive Code was adopted, which declared that the goal of criminal-executive legislation is the protection of the interests of the individual, society, and the state through the creation of conditions for the correction and resocialisation of convicts, the prevention of the commission of new crimes by both convicts and other persons, as well as the prevention of torture, violence, or treatment of convicts that is degrading to their dignity.
Neither the granting of autonomy to the State Department for the Execution of Sentences nor the adoption of a new code improved the situation in the penal system for either the convicts or the service itself.
In February 2005, the President of Ukraine instructed the Prime Minister of Ukraine to develop and submit for approval a draft concept for reforming the penitentiary service. While the concept was being developed, the Verkhovna Rada adopted the Law “On the State Penitentiary Service of Ukraine” in June 2005, which, again, defined the task of the penitentiary service as the implementation of a unified state policy in the field of the execution of criminal sentences, and the basic principles of the activities of the State Penitentiary Service of Ukraine: legality; respect for and observance of human and civil rights and freedoms; humanism; non-partisanship; unity of command; collegiality in the development of important decisions; interaction with public authorities, local
self-government bodies, public associations, charitable and religious
organisations; and openness to democratic civil control.

Already after the adoption of the Law, concepts for reforming the penitentiary service began to appear from the Ministry of Justice (2006), from the National Commission for Strengthening Democracy and the Rule of Law (2007), from the State Department for the Execution of Sentences (2007), and finally the latest one — approved by the President of Ukraine on 25 April 2008.
If the term “concept” is understood as a system of ideas about strategic goals and priorities of state policy, and important directions and means of achieving the goal, then the very fact of the appearance of a concept for reforming the penitentiary service after the adoption of the Code and the Law concerning it seems illogical. Nevertheless, this is exactly what is happening in our state. Moreover, these newly minted concepts, created *post-factum*, suffered from disparate views on the place of the State Department for the Execution of Sentences in the system of power. The Department itself, of course, wished to retain its autonomy, whereas the Ministry of Justice, referring to PACE Opinion No. 190 (1995), insisted on subordinating the penitentiary service to itself.
In the world, there are many examples of both autonomous functioning of the penitentiary service (Italy, Scotland, the Republic of Estonia, and the Republic of Latvia) and its subordination to the Ministry of Justice (USA, Hungary, Poland, Czech Republic, Slovakia, Sweden) and even its inclusion within the Ministry of Internal Affairs (Bulgaria, Vietnam, Cuba, Mongolia, Romania). However, in my opinion, the success of the penitentiary service’s work depends not on who it is subordinate to, but on how firmly the officials of the penal system adhere to the letter and spirit of the Law. It is my deep conviction that the problems of the Ukrainian penitentiary service are, first and foremost, connected with the absolute arbitrariness of the servants of this system. The most important problem on the path to reforming the penitentiary service is not its autonomy, nor even the lack of material support, but the complete impunity of officials in penal institutions. Therefore, the main direction for the humanisation of criminal punishment is the introduction of ubiquitous control over the activities of representatives of the penal system. No case of cruel treatment of a convict should remain unpunished.
As for improving the conditions for the detention of convicts, the introduction of a probation institute can certainly have a positive impact on reducing the number of people held in places of imprisonment, but it will not solve the problem of insufficient material support for the penal system’s institutions. With the introduction of a probation service, there will be a redistribution of the financial burden towards the criminal-executive inspection, which in no way guarantees its sufficiency. Solving the problem of sufficient material support for the penal system is the second truly significant and important problem. But not a single concept, including the last one, approved by the President on 25 April 2008, proposes ways to solve it. Therefore, everything written in the latest concept: to improve the activities of penal institutions by creating conditions for the correction and resocialisation of convicts, obtaining education and acquiring a profession, and their social adaptation in society; to bring the conditions of detention of persons taken into custody and those serving sentences into compliance with the requirements of the European Prison Rules, etc., is nothing more than a *fata morgana* for the next 10 years (which is how much time is allocated for the implementation of the penitentiary service reform according to the latest concept).