Report of the Commissioner for Human Rights

Report by the Commissioner for Human Rights, Mr Thomas Hammarberg, following his visit to Ukraine from 10 to 17 December 2006.
Strasbourg, 26 September 2007.

For the attention of the Committee of Ministers and the Parliamentary Assembly.

I. INTRODUCTION
In accordance with Article 3(e) of Resolution (99) 50 of the Committee of Ministers regarding the Commissioner for Human Rights of the Council of Europe, the Commissioner visited Ukraine between 10 and 17 December 2006 at the invitation of the Minister for Foreign Affairs of Ukraine. The Commissioner was accompanied by Mr Oleksandr Hussel, Mr Roman Shlapak, and Ms Anna-Laura Dural. Ms Sofia Szilagyi joined the group for the final three days.
First and foremost, the Commissioner wishes to thank Mr Viktor Yushchenko, President of Ukraine; Mr Viktor Yanukovych, Prime Minister of Ukraine; and Mr Oleksandr Moroz, Chairman of the Verkhovna Rada of Ukraine, for their cooperation and openness. The Commissioner would like to express his sincere gratitude to the Minister for Foreign Affairs, the Representative of Ukraine in Strasbourg, and the staff of the Permanent Representation of Ukraine to the Council of Europe. The Commissioner is grateful to all other partners with whom he met, in particular Mr Oleksandr Chalyi, Deputy Head of the Secretariat of the President of Ukraine; the Ministers of Justice, Internal Affairs, and Education; the Head of the State Department of Ukraine for the Execution of Criminal Punishments; representatives of the State Committee of Ukraine for Nationalities and Migration; the mayors of Lviv and Odesa; representatives of local state administrations; heads of the factions of the main parties in the Verkhovna Rada; religious leaders; and representatives of non-governmental and international organisations.
During this trip, the Commissioner visited Kyiv, Lviv, and Odesa. The purpose of the visit was to assess the human rights situation in Ukraine, identify key shortcomings, and formulate recommendations to improve the situation. The recommendations serve as a starting point for a consistent dialogue with the Ukrainian authorities with a view to consolidating and improving the human rights situation.
The programme was developed in cooperation with the Ministry of Foreign Affairs and with the active assistance of the Permanent Representation of Ukraine to the Council of Europe and the Information Office of the Council of Europe. The visit programme included meetings with government officials, civil society representatives, and religious leaders. The Commissioner visited detention centres, schools, police stations, hospitals, and centres for the disabled. The Commissioner would like to draw attention to the significant role played by non-governmental organisations (NGOs), which provided substantial assistance both during the preparatory stage and throughout the visit.
VI. PENITENTIARY SYSTEM (INCLUDING PRE-TRIAL DETENTION CENTRES AND COLONIES)
1. General observations
46. The penal system has been removed from the jurisdiction of the Ministry of Internal Affairs but has not yet been transferred to the Ministry of Justice, as required by the commitments undertaken by Ukraine upon its accession to the Council of Europe. The State Department for the Execution of Criminal Punishments was created in 1998 as a central executive body with special status for the penal system, subordinate to the Cabinet of Ministers of Ukraine. Control over pre-trial detention centres (SIZO) was transferred from the Security Service to the State Department. The penal system is chronically underfunded. While noting the continuous increase in state funding, the Commissioner urges the state to continue improving conditions of detention. Staff salaries must be increased to ensure integrity; education must also be encouraged.
47. Public monitoring remains insufficient. The Commissioner noted that public monitoring is essential for the successful reform of the system. The Public Council must begin functioning as soon as possible, and mobile groups should be created and supported within the penal system in the same way as in the Ministry of Internal Affairs system. The Commissioner also noted the alarming number of convicted juveniles. It is evident that most of them are drug addicts. There appears to be a lack of funding for the education of those in custody. The Commissioner urges that particular attention be paid to this category of prisoners. It is necessary to improve school training and dietary variety for adolescents and ensure appropriate time for outdoor activities throughout the country. Finally, the Commissioner noted a lack of vocational activities for men and a lack of measures for social reintegration for former prisoners. At the colony in the village of Zaklad, near Lviv, all educational activities were conducted by volunteers.
2. Overcrowding
48. Overcrowding in penal facilities is one of the most difficult problems. This was clearly visible in the SIZO in Lviv and Odesa, which the Commissioner visited. Overcrowding is linked to the length of judicial proceedings. Nevertheless, the Commissioner took note of and welcomed the fact that, despite such a high degree of prison overcrowding, the number of prisoners is gradually decreasing. The leadership of the Department for the Execution of Criminal Punishments reported that the number of prisoners was 209,000 in 1999 compared to 161,900 today. At the same time, the number of penal facilities remains unchanged. It was reported that such a reduction was made possible through the systematic release of persons imprisoned for minor offences via amnesties and pardons by the President of Ukraine. The incarceration rate remains one of the highest in the world, and therefore further steps are needed to overcome the serious level of overcrowding. A draft law on alternative sentencing is reportedly under consideration in the committees of the Verkhovna Rada of Ukraine. The Commissioner encourages the Ukrainian authorities to create and develop alternative forms of punishment, such as community service, sentence reduction for good behaviour, and parole.
3. Facilities
49. The Commissioner noted that the buildings of penal facilities were in a deplorable state and in need of repair. As such, they did not meet international sanitary and other special requirements. The detainees the Commissioner met with mostly complained of a lack of lighting, poor ventilation, insufficient food, poor sanitary conditions, a lack of beds, and the inability to isolate detainees suffering from infectious diseases. Visiting correctional centres in Lviv, Odesa, and Kyiv, the Commissioner was concerned that no cell met European standards. Traces of dampness could be seen on the walls. The toilets were in a wretched state, requiring repairs and causing a stench throughout the cells. Such an environment is not only hazardous to the health of the detainees but also undermines their right to a certain level of dignity. Disciplinary cells were in an even worse condition. The Department is considering negotiations with private investors regarding the construction of new prison facilities outside Odesa in exchange for the acquisition of land plots in the city centre. There are four penal facilities in the centre of Odesa. Plans are in place to relocate the Lviv SIZO outside the city.
4. Medical care
50. The Commissioner welcomed the government's efforts aimed at improving medical care for prisoners. According to information provided by the authorities, there has been a 38% reduction in the number of people infected with tuberculosis over the last four years. The number of deaths has been halved (see Melnyk v. Ukraine8). The Cabinet of Ministers of Ukraine has adopted a decision on the construction of specialised facilities for sick convicts between 2005 and 2010. The State Department has launched the implementation of a World Bank (WB) programme for the control of tuberculosis and HIV/AIDS among prisoners serving sentences. Medications for 1st and 2nd stage tuberculosis have become available through cooperation with the International Monetary Fund and the WB. Nevertheless, many shortcomings remain. The Commissioner asserts that it is unacceptable that individuals suffering from infectious diseases are often serving their terms alongside others. The authorities justify the situation by a lack of resources. The Commissioner noted that detainees must be regularly tested for HIV/AIDS. NGO representatives in Odesa reported that the Department no longer has laboratories for HIV testing. Ukraine has been convicted several times by the European Court of Human Rights, in particular in the case of Melnyk v. Ukraine (Article 3, violation regarding the lack of medical care and assistance provided in the place of detention to the applicant who suffered from tuberculosis) and the case of Nevmerzhitsky v. Ukraine9 (Article 3, violation regarding the forced feeding of the applicant without established medical necessity).
5. Detention of women
51. It appears that women in detention centres are provided with better conditions than men. Indeed, at the Chornomorsk Penal Centre No. 74, the Commissioner formed a positive opinion regarding the conditions for women. Firstly, women who are pregnant at the time of conviction and are serving sentences may keep their child within the facility during the child’s first three years of life. The rooms designated for children give the impression of being oriented towards a child-friendly atmosphere. The child is then sent to their family, to an adoptive family, or to an orphanage. Unfortunately, the child can then visit the mother only a few times a year. The fact that women can remain in contact with their children is positive and represents a step forward towards reintegration, which is a general goal of the judicial system, but this measure is insufficient. Secondly, at the same time, women can work and earn a living through the work they perform within the prison. This is another measure that can ensure future reintegration into society. The Commissioner managed to visit only one facility for women, but he hopes that the favourable conditions there are applied in other facilities as well.
XII. NGOS AND CIVIL SOCIETY
197. The Commissioner considers the NGO community to be extremely important. He believes that Ukraine can be proud of the large-scale activities of NGOs and the quality of their work. He was impressed by the dedication with which they have contributed to increasing respect for human rights. Nevertheless, he remains concerned that they are under such an excessive burden, given the lack of government programmes. However, he was pleased with the reception received by NGO staff when they attempt to cooperate with state institutions. This was especially noted during his visit to the penal colony in the village of Zaklad. There was an individual who could come every week to teach detainees suffering from HIV/AIDS. There were also volunteers who came to provide religious education.
198. Furthermore, the Commissioner was pleased to observe that several regional administrations have actively supported the NGO community, including through funding.
199. Nevertheless, he was disappointed by the fact that a respected and well-known NGO in the Odesa region, 'LIFE+', was forcibly evicted from its premises and was therefore unable to carry out its useful work. The Commissioner recommends that several premises be allocated for such volunteers to enable them to carry out their difficult tasks.
XIII. RECOMMENDATIONS
Ukraine has undergone profound changes and improvements since gaining independence. The Commissioner wishes to pay tribute to the efforts made, while remaining concerned about a number of issues. In fact, the reforms that have been undertaken, particularly in the judicial sphere, must be completed as soon as possible. Furthermore, in areas where reforms have taken place, the Commissioner emphasises the need to bridge the gap between theory and practice. Based on this, the Commissioner has made the following recommendations:
Justice, Police, and the Penitentiary System
3. Penitentiary system
- carry out repairs to buildings housing prisoners, in particular pre-trial detention centres;
- take measures to reduce the number of prisoners; ensure alternative forms of sentencing;
- improve conditions of detention for adolescents, guarantee their detention in separate centres, and ensure they receive school education and adequate nutrition throughout the country;
- ensure professional activities and effective measures for resocialisation, particularly for men, who appear to suffer more in this regard;
- further develop cooperation between prison administration and the public;
- improve medical conditions in the penitentiary system; ensure tuberculosis and HIV/AIDS screening and proper medical care for all detainees; improve sanitary and hygienic conditions; guarantee that prisoners infected with infectious diseases are isolated from other prisoners.
NGOs and civil society
- further develop cooperation and dialogue between NGOs and the state.