Is the Independence of the Department a Necessity or a Whim?

Analytical Note
“Creation and functioning of the State
Department for the Execution of Sentences,
as an independent structure: the experience of Ukraine”

The analytical note was prepared within the framework of the Legal Policy Research Centre project “Strengthening dialogue on legal policy issues in the Republic of Kazakhstan” with the financial support of the Organisation for Security and Co-operation in Europe (OSCE) Centre in Astana. The opinions and views contained in the analytical note may not coincide with the position of the OSCE and reflect the author’s point of view.

1. History of the creation of the State Department of Ukraine for the Execution of Sentences
After the collapse of the USSR, the criminal-executive system of Ukraine was part of the Ministry of Internal Affairs until 1998. It included 25 regional departments and almost 180 institutions. On 14 July 1992, Ukraine submitted an application to join the Council of Europe. In September 1992, the Ukrainian Parliament was granted special guest status in the Parliamentary Assembly of the Council of Europe (hereinafter – PACE), which, in its Opinion No. 190 (1995), recommended that the Committee of Ministers of the Council of Europe invite Ukraine to become a member of this organisation. This recommendation was based on the understanding that, one year after joining the Council of Europe, Ukraine would adopt a new constitution and a concept of legal policy in the sphere of human rights protection. In particular, it was also envisaged that the function of prison management would be transferred to the Ministry of Justice by the end of 1998. Ukraine became a member of the Council of Europe on 9 November 1995.
As the deadline set by Opinion No. 190 (1995) for the transfer of the prison system to the Ministry of Justice approached, Ukraine began to seek a compromise option for fulfilling this requirement, citing its lack of readiness for such a reform. As a result, it was decided not to immediately transfer the criminal-executive service to the Ministry of Justice, as had been done in a number of former republics of the Soviet Union, but rather to form an independent agency as an interim solution.
The State Department of Ukraine for the Execution of Sentences (hereinafter – the Department) was created by Decree of the President of Ukraine on 22 April 1998, on the basis of the Main Directorate for the Execution of Sentences (GUIN) of the Ministry of Internal Affairs of Ukraine. Initially, the tasks and functions of the Department were defined in the Regulation on the State Department of Ukraine for the Execution of Sentences, approved by Decree of the President of Ukraine on 31 July 1998. On 1 January 2004, the new Criminal-Executive Code of Ukraine entered into force, which is currently the main document regulating the execution of sentences and the structure of the Department’s institutions in Ukraine. In June 2005, the Law of Ukraine “On the State Criminal-Executive Service of Ukraine” was adopted. All these documents proceed from the fact that the Department is an independent structure within the Cabinet of Ministers, and not part of the Ministry of Justice; that is, the organisation of the penal system in Ukraine continues to remain in contradiction with the requirements of the Council of Europe.

2. Discussion on the legal status of the penitentiary agency in Ukraine
The issue of the subordination of the penitentiary agency in Ukraine remains unresolved. In legal literature and at public forums, there has been an active discussion of this problem over the last few years. The position of the Council of Europe remains unchanged. It is based on the obligations of Ukraine, which are clearly formulated in Opinion No. 190 (1995). In all subsequent documents concerning Ukraine’s fulfilment of the obligations it undertook before the Council of Europe, the need to transfer the prison system to the Ministry of Justice has always been emphasised. There is not a single official document of the Council of Europe in which the existing status of the agency as an autonomous structure is recognised as acceptable.
The unchanging position of the Council of Europe on this issue has been evidenced since 1999 by the relevant resolutions of this organisation regarding Ukraine. For example, one year after the creation of the Department as an independent agency, the Council of Europe, in its Resolution 1179 (1999) “On the honouring of obligations and commitments by Ukraine” of 27 January 1999, noted:
“1. The Assembly notes that since its accession to the organisation on 9 November 1995, Ukraine, as a member country, has fulfilled part of the obligations contained in Opinion No. 190 (1995). However, it (the Assembly – O.B.) is deeply concerned about the slow implementation by the state of those obligations that still remain unfulfilled.
6. The transfer of responsibility for the penitentiary system to the Ministry of Justice is being carried out slowly.”
Two years later, in the subsequent Resolution 1262 (2001) “On the honouring of obligations and commitments by Ukraine”, it was stated:
“11. The Assembly invites the Ukrainian authorities to:
i. subordinate the State Department for the Execution of Sentences to the Ministry of Justice (emphasis added – O.B.), and complete the transfer to the Ministry of Justice of pre-trial detention centres, which are still under the jurisdiction of the Ministry of Internal Affairs and other security services.”
In 2003, in paragraph 8 of PACE Resolution No. 1346 (2003), it was stated unequivocally: “The Assembly urges the Ukrainian authorities to: ... complete the transfer of the entire penal system to the jurisdiction of the Ministry of Justice... (emphasis added – O.B.).”
PACE Resolution No. 1466 (2005) on the honouring of obligations by Ukraine states:
“13. Regarding the observance of the rule of law and the protection of human rights, the Assembly calls on the Ukrainian authorities to:
complete the transfer of the State Department for the Execution of Sentences to the jurisdiction of the Ministry of Justice, as provided for in Opinion No. 190 (paragraph 11.vii).”
Throughout 1998–2007, whenever there was an attempt to transfer the agency to the jurisdiction of the Ministry of Justice, the leadership of the Department actively opposed such reforms. While in the late 90s such actions were explained by the fact that the agency was not yet fully prepared for a transfer to the Ministry of Justice, with the arrival of new leadership in early 2005, claims began to be made that Ukraine had already fulfilled its obligations to the Council of Europe. For example, the position of preserving the autonomy of the agency was voiced by the Chairman of the Verkhovna Rada Committee on Legislative Support of Law Enforcement Activity, V. Moysyk, who stated the following: “According to Ukraine’s obligations upon joining the Council of Europe, in accordance with the Parliamentary Assembly Opinion 190 (1995), it was determined that by the end of 1998, the penitentiary system of Ukraine should be removed from the subordination of the Ministry of Internal Affairs. In my opinion, the requirements of the Council of Europe do not boil down to subordinating the penitentiary system to the Ministry of Justice, but to creating a penitentiary service as an autonomous social organisation.” In this regard, it must be noted that Opinion No. 190 (1995), which we wrote about above, clearly speaks of transferring the penitentiary system specifically to the Ministry of Justice, and V. Moysyk’s interpretation of this requirement is arbitrary and groundless.
The State Department of Ukraine for the Execution of Sentences also used a document to justify its position on the autonomy of the prison system, which was prepared in 1996 within the framework of the Joint Programme of the European Commission and the Council of Europe in the field of legal system reform in Ukraine by a number of Council of Europe experts. It is known as the “Report on the Prison System of Ukraine”. In it, in particular, it is stated that “5.13 The Ukrainian penitentiary service has always had close operational relations with the military and the police, and it is often and incorrectly referred to as one of the law enforcement agencies. All staff, including the majority of administrative personnel working in the main and regional directorates, hold military ranks. Although cooperation between agencies and mutual support play an important role in maintaining public order and security in the state, these three agencies must perform different functions. Therefore, we believe that such a close link, which is further reinforced by the use of military personnel, is unacceptable. We believe that the withdrawal of military personnel from the penitentiary service will be a significant contribution to ongoing efforts aimed at modernising the service and bringing it into greater compliance with European standards.
5.14 The use of military personnel and certified officers of internal affairs bodies distorts the tasks and status of the penitentiary service in the eyes of the public and deprives the service of its own identity, which it requires and deserves. Service personnel should be distinguished by their functions, and therefore more attention should be paid to their administrative, supervisory, and managerial functions, rather than their position on the steps of the military hierarchy.
5.15. The withdrawal of military personnel from the penitentiary service is one of the important elements of reform, and it should be accompanied by a revision of staff training programmes. The process of gaining a civilian character requires that activities which are purely military in nature be replaced by activities that more accurately reflect the specific role of the penitentiary service and the importance of the social contribution it makes.
We recommend:
- to end all organisational and operational ties with the military and the police and to give priority to the need to create a penitentiary service as an autonomous civilian agency.”
Obviously, in this context, the point was the need to make this agency independent (autonomous) from ties with the police as a force and law enforcement structure as soon as possible; however, this did not prevent the Department’s leadership from using this document to justify their position on maintaining an independent agency for the execution of sentences. Naturally, representatives of non-governmental organisations did not agree with such an interpretation of the obligations to the Council of Europe, explaining in their statement on this issue that the autonomy of the new structure should be understood as independence from a militarised agency, not from a civilian structure – the Ministry of Justice. In their opinion: “Today, compliance with European human rights standards in penitentiary institutions is still more about promises and good intentions than the actual state of affairs. And the independence of the Department is a factor that is more likely to hinder the implementation of European standards.” It is unlikely that the mention of autonomy in the Report on the Prison System of Ukraine excludes or denies the subordination of the agency for the execution of sentences to the Ministry of Justice. Especially since, subsequently, the unambiguous wording of documents of a higher rank than an expert report conveys the position of the Council of Europe on the issue of the agency’s subordination quite clearly. We have already written about their content above. Let us add only that, for example, in the Explanatory Memorandum of the co-rapporteurs, drawn up during the preparation of Resolution No. 1466 (2005) “On the honouring of obligations and commitments by Ukraine”, the authors’ conviction regarding the need to transfer the agency to the Ministry of Justice is also clearly expressed.
Despite the Department’s position on maintaining its autonomous status, the country’s top leadership understands that obligations to the Council of Europe must be fulfilled and, in particular, that it is necessary to transfer the penitentiary system to the Ministry of Justice. On 12 February 2005, a statement by the Cabinet of Ministers was published regarding the liquidation of a number of agencies and their transfer to ministries. This statement also referred to the liquidation of the Department as an independent structure and its transfer to the Ministry of Justice. Such a decision would correspond to Ukraine’s obligation under PACE Opinion No. 190 (1995). However, it has not yet been implemented, as corresponding changes at the legislative level are required. Such changes are being hindered in every possible way by the Department and its lobbyists in the Ukrainian Verkhovna Rada.
Representatives of the human rights organisation “Donetsk Memorial” and the Penitentiary Society of Ukraine offered the agency’s leadership the opportunity to conduct a public discussion on the status of the system, discussing the problems and advisability of such re-subordination within an expert circle with the involvement of the public. However, the Department did not respond to such proposals.
Considering the complex internal political situation in the country, the conflicts associated with the activities of the Verkhovna Rada and the government, the question of the agency’s affiliation remains open, and for now, its resolution seems to have been postponed for the future.

3. Current state of the criminal-executive system in Ukraine
The relatively limited practice of applying the Criminal-Executive Code of Ukraine (CEC), which entered into force on 1 January 2004, has allowed for the identification of a whole range of shortcomings and omissions that negatively affect the effectiveness of the activities of criminal-executive system (CES) bodies and institutions. Most progressive norms are declarative in nature, as there are no real mechanisms for their implementation. A number of provisions of the CEC are not consistent with other current acts of national legislation. This often leads to unjustified departmental rule-making by the Department. Such a situation noticeably complicates the process of ensuring human rights, as some of these acts narrow and limit their scope. The internal regulations of penal institutions contain a number of restrictions for convicts, the advisability of which is either questionable or has no rational explanation.
A number of articles of the CEC provide for the use of convict labour as a punishment (Art. 68, 82, 132, 145 of the Code). In this regard, the Report of the NGO “Donetsk Memorial” rightly notes that “having proclaimed its commitment to international standards of treatment for prisoners, the drafters of the CEC, in Part 1 of Art. 132, which provides for such a penalty as ‘assignment to extra cleaning duty in the premises and on the territory of the colony’, once again ignored the recommendations contained in Part 1 of Art. 28 of the Standard Minimum Rules for the Treatment of Prisoners, according to which prisoners should not be punished by disciplinary measures involving work on the maintenance of the institution itself.”
The managers of Ukraine’s criminal-executive system do not hide the general problems in its activities; however, as a rule, they limit themselves to a general acknowledgement of them. At the same time, the leadership of the Department sees the causes of most problems in the agency solely as either insufficient funding or a shortage of personnel.
It should be emphasised that the autonomous nature of the penitentiary agency complicates control over its activities. The reports of the Ombudsman and the Accounting Chamber indicate serious shortcomings both in the sphere of observing the rights of prisoners and in the organisation of the use of budget funds. The real situation in many areas of the criminal-executive system’s activities remains almost unknown to the general public. The issue of the agency’s openness to human rights organisations remains a serious problem. The Department agrees to cooperate only with those public organisations that provide material assistance to colonies, while the agency avoids constructive cooperation with human rights organisations that raise issues of compliance with the rights of convicts.
The independence of the agency under such conditions contributes to its closed nature, because with the non-constructive position of the Department’s leadership, human rights activists can only appeal to the country’s leadership, who are most often too busy to deal with the problems of the penitentiary system.
Currently, it can be stated that the Department has had ten years to prove its effectiveness in the field of human rights protection specifically as an independent agency. However, the criminal-executive system has done almost nothing in this direction.

4. Some concluding considerations
Of course, there can be no guarantees that by re-subordinating the prison system to the Ministry of Justice, it will be possible to immediately achieve positive changes in its reform. As is known, very often the determining factor for the effective achievement of human rights standards is the practical activity of the system and, above all, its leadership. However, it is indisputable that in Ukraine, the Department, as an autonomous structure, has shown its inability to ensure human rights standards. That is precisely why, and also because there are obligations of the country that must be fulfilled, the issue of transferring the Department to the jurisdiction of the Ministry of Justice remains relevant.

Legal Policy Research Centre 25 July 2008