The curtailment of prisoners’ rights in the Department continues

On 14 April 2008, the charitable organisation “Chernihiv Women’s Human Rights Centre” approached the Department with a request to be informed as to which normative legal act of the State Department of Ukraine for the Execution of Sentences determines the procedure for granting prisoners short-term leave in connection with exceptional circumstances.

On 05 May 2008, under No. 3/5-422, the organisation received a response that was somewhat surprising.
Paragraph 2 of the response states:
“Indeed, by the Department’s order of 11 January 2008, No. 1, the norms that determined the procedure for granting short-term leave to prisoners were cancelled; however, at present, the practice of granting them has not been suspended. And they are granted by analogy to the norms defined in the Department’s order of 23 March 2000, No. 38 dsk.”
In their response, the Centre’s experts emphasise:
“We cannot agree with such a statement for the following reasons, namely:
1. In accordance with Clause 3 of the State Department of Ukraine for the Execution of Sentences (SDUES) Order No. 1 of 11 January 2008, ‘On the approval of the instruction on the work of departments of penal institutions and pre-trial detention centres regarding the control over the execution of judicial decisions,’ it is stated in an imperative form to ‘recognise as invalid the Department’s Order of 23 March 2000, No. 38 dsk, ‘On the approval of the instruction on the work of special accounting departments of pre-trial detention centres and the Instruction on the work of special accounting departments of correctional labour institutions.’ According to Part 1 of Article 58 of the Constitution of Ukraine, ‘laws and other normative legal acts do not have a retroactive effect in time...’ In our opinion, the norms of Order No. 38 dsk regarding the procedure for granting short-term leave to prisoners due to exceptional circumstances cannot be applied in any way.
2. It seems to us that there is a gap in the law in the SDUES Order No. 1 of 11 January 2008.
3. An analogy of law or legislation may be applied in the presence of gaps in the field of civil legislation.
We believe that one of the significant reasons for the violation of the rights and legitimate interests of prisoners, which leads to extraordinary events in the penal institutions of Ukraine, is the issuance of orders by the State Department of Ukraine for the Execution of Sentences that do not correspond to the spirit of the Constitution of Ukraine or the existing penal legislation. The issuance of these orders, which in turn are mandatory for the staff of penitentiary institutions to execute, leads to the deformation of the legal consciousness of employees and the existence of such a phenomenon as legal nihilism within the penitentiary system staff.
We strive for constructive cooperation with the Department and are interested in ensuring that standard-setting activities correspond to the Constitution of Ukraine, international legal agreements ratified by the Verkhovna Rada of Ukraine, and existing penal legislation; we consider the responses sent to our address by your employees to be a regrettable misunderstanding.”