ON THE DRAFT CONCEPT OF STATE POLICY FOR TORTURE PREVENTION

Monitoring of the state of observance of prisoners' rights in penal institutions, conducted in recent years, convincingly proves the existence of numerous violations in the sphere of criminal punishment execution, and frequent cases of the use of torture and ill-treatment. A third of prisoners believe that the personnel treats them "badly" and "very badly," and insults and boorish treatment have become a norm of life in some correctional colonies. Violations of prisoners' rights take place in all areas: starting from medical support and ending with obtaining a profession and work in factories.
Meanwhile, the bodies which, under current legislation, are tasked with ensuring supervision and control over the observance of legislation and the rights of prisoners do not ensure the proper performance of their assigned functions. Thus, the prosecutor for the supervision of compliance with laws in the execution of decisions in criminal cases almost always takes the side of the penal institution's administration, neglects duties regarding visiting colonies and personal meetings with prisoners (or such visits are purely formal in nature).
Higher bodies of the Department's leadership are more concerned about the general state of the system's image than about ensuring the observance of prisoners' rights. The lack of desire on the part of the Department's leadership to obtain information about the real state of affairs regarding the avoidance of torture and ill-treatment in the activities of its subordinate bodies and institutions is also evidenced by the fact that the list of criteria for the system's effectiveness includes only an array of data regarding the analysis of: a) the dynamics of persons held in penal institutions and pre-trial detention centres, overcrowding of penal institutions and pre-trial detention centres; b) the situation regarding the prevention of crimes and offences by prisoners and persons taken into custody; c) the state of socio-educational work with prisoners; d) the state of vocational-technical and general education training of prisoners; e) the organisation of production-economic activity and the engagement of prisoners in work; f) the state of nutrition, clothing, communal-domestic support, and healthcare; g) work with personnel.
Based on the results of an assessment of the effectiveness of the State Penal Service of Ukraine's activity and an analysis of the real and potential threats to its sustainable operation, the main factors negatively affecting the work of penal bodies and institutions and pre-trial detention centres were identified, in particular: improper financing of expenditures for the support of the State Penal Service of Ukraine's activity and low social-legal protection of its personnel, which creates conditions for the spread of corruption and bribery; a decrease in the level of support with special equipment and engineering-technical security means; the deterioration of the healthcare and social protection system for prisoners, and as a consequence, a dangerous deterioration in the state of the nation's health; the insufficient professional level of personnel and the lack of scientific support for the reform process of the State Penal Service of Ukraine due to the absence of a higher departmental educational institution; the unsatisfactory state of the main production assets of industry, which creates conditions for the non-competitiveness of produced products and an unsatisfactory financial-economic situation.
Board of Trustees and supervisory commissions function in most cases only "on paper," although a fairly large number of prisoners (about 37.8%) place high hopes in the matter of protecting their rights precisely on public control. Practically, today there is not a single institution that would genuinely have the ability to ensure the real implementation of preventive mechanisms generally recognised by the international community in the practice of the State Penal Service's activity.
The adoption of a new Penal Code of Ukraine in 2003 also did not create an effective mechanism for protecting prisoners' rights. At first glance, this document should have become an important factor for the practical implementation of preventive mechanisms in Ukraine, because Article 1 of this legislative act clearly defines that the purpose of the penal legislation of Ukraine includes, among other things, the prevention of torture and inhuman or degrading treatment of prisoners, but a detailed analysis of the provisions of the KVK testifies only to the declaration of this task in the absence of real mechanisms for its implementation in practice. We will provide just a few examples.
For instance, Article 8 of the KVK declares the right of prisoners to appeal with statements and complaints to various bodies and institutions. However, in practice, it is quite often violated both by the administration of colonies and by higher bodies of supervision and control. This is evidenced by at least such cases when an appeal is sent for consideration to the body against which the applicant is complaining, or the provision of formal dismissive replies about the consideration of the statement without confirmation of the facts set forth in it. The procedure for reviewing almost all prisoner appeals provided for by the Department's departmental acts leads to the fact that letters in which the administration is "compromised" are not sent to the addressee, and punitive measures are applied to the prisoners.
Part 15 of Article 134 of the KVK establishes that when imposing a penalty on a prisoner, the colony administration must provide him with the opportunity in the established order to inform his close relatives, a lawyer, or other specialists in the field of law who, under the law, have the right to provide legal assistance, personally or by proxy of a legal entity. But a mechanism for the practical implementation of the named norm has not been created in practice, which also does not contribute to the observance of their rights.
It is necessary to note that even the state-guaranteed right to legal assistance (part 2 of Article 8 of the KVK) cannot be realised in full. Formally, a prisoner can receive legal assistance not only from a lawyer but also from other specialists in the field of law who, under the law, have the right to provide legal assistance, personally or by proxy of a legal entity. However, the Plenum of the Supreme Court of Ukraine in its resolution dated 24 October 2003 No. 8 "On the Application of Legislation Ensuring the Right to Defence in Criminal Proceedings" recognised as correct the practice of those courts that, due to the absence of a special law, do not admit such specialists to carry out defence (paragraph 5). Thus, in accordance with current legislation, the defence of a person when resolving issues related to the execution of a sentence and regulated by the Criminal Procedure Code of Ukraine can be carried out exclusively by lawyers, as there is currently no special law that grants the right to carry out defence to other specialists in the field of law.
The issues of applying physical force, special means, and weapons to prisoners (Article 106) are not clearly written in the KVK and departmental acts, which creates conditions for their implementation at the discretion of the penal institution's administration. Similarly, the procedure for introducing special-purpose units allows in any case to confirm the illegality of the actions only of prisoners, justifying the administration of the places of deprivation of liberty (which is why, perhaps, the so-called "mask-show" has become widespread on the territory of Ukraine).
Part 5 of Article 116 of the KVK declares the right of a prisoner to appeal for consultation and treatment to institutions not subordinate to the correctional colony administration. However, the procedure for realising this right is not regulated by any act, just as there is an absence of liability for the administration for violating this right. As a result, it is impossible for prisoners to prove cases of the use of torture by the administration.
The issue of protecting violated rights of prisoners by courts also remains unregulated. The Constitution of Ukraine provides that every citizen is guaranteed the right to appeal to a judicial body to protect their rights. However, the formation of administrative courts and the transfer to them of part of the powers of civil proceedings led to the fact that the issue of appealing against unlawful actions of colony administrations effectively ended up outside the sphere of application of both administrative and civil legislation. This is due to the fact that, in fact, neither the prisoner nor the colony administration is a subject of administrative (as follows from the Code of Administrative Judiciary of Ukraine), and even more so civil proceedings (under the Civil Procedure Code of Ukraine, cases between natural persons, and not in the sphere of public administration, are considered in the order defined by it). Because of this, the prisoners' right to appeal to the court for the protection of rights remains unrealised in practice.
The examples given are not isolated, but have a systemic nature and require a comprehensive solution. The widespread nature of torture and degrading treatment is evidenced by the facts of mass disobedience by prisoners and attempts at self-mutilation that took place in Kharkiv, Lviv, Vinnytsia, and some other regions of Ukraine.
Rectifying the situation is possible by introducing appropriate changes to the current penal and administrative legislation (in particular, regarding medical examination at the request of prisoners; granting the head of the supervisory commission the right to visit penal institutions at any time; reviewing the procedure for prisoners submitting statements and complaints; expanding the right of access to legal assistance), as well as by increasing the role of supervisory commissions in carrying out public control over the observance of prisoners' rights (creation of reception offices for prisoners in penal institutions; clear regulation of the procedure for carrying out public control in current regulatory-legal acts; expansion of the circle of rights of supervisory commissions and giving more official significance to their decisions, etc.).
Not the least role in ensuring greater effectiveness of preventive mechanisms should be played by increasing the level of awareness of future employees of the criminal punishment execution system regarding the main provisions of the legal status of prisoners, mechanisms for preventing torture and ill-treatment, and punishment. Instilling in the consciousness of the future Department personnel a proper attitude towards generally recognised provisions regarding the non-admission of torture and ill-treatment of prisoners will allow for the state of affairs in the system to be changed over time.
As of today, specialists in various fields of law, together with representatives of leading non-governmental organisations of Ukraine, have developed a draft Concept of State Policy for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter: the Concept). A study of the content of this document testifies to the fact that it proposes a comprehensive approach in which legislative, organisational, and socio-economic aspects of protecting a human from torture and ill-treatment and preventing them are combined.
One of the directions for legislative support to make torture and ill-treatment impossible are certain proposals to criminal procedure legislation.
The Concept correctly establishes those legislative provisions which, in combination with other factors of an administrative and organisational nature and the level of professional legal consciousness, have created established prerequisites for abuse in the form of torture and ill-treatment on the part of bodies of inquiry and pre-trial investigation when investigating crimes. Undoubtedly, the reason lies in the unfolded criminal shadow mechanism of contributing to the formation of procedural evidence, the functioning of which is conditioned precisely by those circumstances that have been clarified and characterised in the Concept.
A clear definition of the reasons for the spread of torture and ill-treatment allowed the Concept's developers to propose, in our opinion, the correct paths for making manifestations of such a shameful phenomenon impossible. We consider the provisions regarding the creation of an atmosphere of intolerance towards the use of torture (paragraph 3.1.1) to be sound and requiring support and implementation.
Measures regarding the introduction of new principles of work for law enforcement bodies in the sphere of combating crime, and scientifically substantiated criteria for evaluating their activities (paragraph 3.1.2) are also necessary.
The authors correctly note that, despite the presence in the Constitution of Ukraine and the Criminal Procedure Code of Ukraine of imperative norms that prohibit the use as evidence of data obtained as a result of violence, threats, and other illegal measures, judicial practice has not yet become a reliable barrier to obtaining evidence precisely by such methods.
Therefore, we support the proposals contained in paragraph 3.2.2 regarding granting judges broad powers to investigate the circumstances of obtaining information for which there is a statement that it was provided under the influence of torture or ill-treatment, and regarding placing the burden of proving the voluntariness of providing information on the accuser.
We also share the opinion that the use of such evidence by a state official should be considered a violation of professional conduct standards and be subject to consideration in disciplinary proceedings (paragraph 3.2.2).
We believe that granting courts the right to demand the immediate delivery of any person held in places of deprivation of liberty during pre-trial investigation to resolve the issue regarding the legality of their detention and to take necessary actions to prevent ill-treatment will stand as an obstacle to abuses by officials (paragraph 3.2.3).
We fully support the proposals contained in paragraph 3.2.4 regarding the necessity of systematic review by the court of the grounds for deprivation of liberty precisely at the initiative of the person who is deprived of liberty as a result of the application of a preventive measure, as well as on other grounds (except for cases of serving a sentence), and not only in connection with the expiration of the term defined by law or a court decision, as occurs in domestic law-enforcement practice.
We consider the mechanism proposed by the Concept's developers for investigating offences concerning possible ill-treatment or torture (paragraph 3.5) to be well-considered and subject to unconditional implementation. We agree that this should take place on the basis of criminal procedure legislation, within the framework of a separate criminal case, by an independent and impartial subject of criminal prosecution, with the use of an effective system for the safety of the victim.
Summarising what has been set forth, it should be emphasised that the draft Concept as a whole deserves support, and its main conceptual provisions require legislative consolidation in the current legislation of Ukraine.