A new threat to the rights of convicts?

The draft Regulations on the Special Purpose Unit of the State Penitentiary Service of Ukraine (hereinafter referred to as the 'Regulations') have been posted for public discussion on the official website of the State Department of Ukraine for the Execution of Sentences (hereinafter referred to as the 'Department').
The fundamental premise for analyzing the draft is as follows: 'In accordance with Article 19 of the Constitution of Ukraine, state authorities and local self-government bodies, their officials are obliged to act only on the basis, within the limits of authority, and in the manner provided by the Constitution and laws of Ukraine.' This is where the difference lies between state bodies and institutions and natural persons—the latter can act as they see fit, provided such behavior is not explicitly prohibited by law.
As the analysis of the draft Regulations shows, this act is aimed at a significant limitation of the rights of convicts and other persons, and its individual provisions contradict currently effective legislation. As a result, the approval of this act in its presented form is inappropriate, and I cannot help but express concern regarding such attempts at the departmental level to create a factually uncontrolled entity with unlimited powers.
Thus, Clause 2.1 of the Regulations states: 'The Special Purpose Unit (hereinafter referred to as the 'SPU') is a militarized formation that, in accordance with the law, acts within the composition of the territorial management body of the Department, and carries out special measures aimed at fulfilling defined tasks and functions.' The key term, in my opinion, in this definition is 'in accordance with the law.'
Indeed, Article 6 of the Law of Ukraine 'On the State Penitentiary Service of Ukraine' includes militarized formations in the composition of the State Penitentiary Service of Ukraine (hereinafter referred to as the 'SPSU').
However, as defined in Article 12 of the aforementioned Law, militarized formations are units that, in accordance with the law, act within the composition of bodies and institutions for the execution of sentences and pre-trial detention centres, designed for their protection and the prevention and suppression of actions that disrupt the work of correctional facilities.
Article 392 of the Criminal Code of Ukraine (hereinafter referred to as the 'CC') stipulates that actions disrupting the work of correctional facilities include the terrorizing of convicts within correctional facilities or an attack on the administration, as well as the organization of an organized group for this purpose or active participation in such a group, committed by persons serving sentences in the form of restriction or deprivation of liberty. In criminal law, the terrorizing of convicts is understood as the application of physical violence against them or the threat of its application; an attack on the administration is the commission of violent acts against it, as well as the threat of the application of violence.
Any remarks or other violations of the order and conditions of serving a sentence, including non-compliance with regime requirements, do not fall under the sphere of influence of militarized formations.
Therefore, the key point in the functioning of militarized formations, which the SPU are, is the scope of their purpose, limited to two directions: 1) protection of facilities; 2) prevention and suppression of actions defined in Article 392 of the CC.
However, the SPU is also entrusted with activities to counter terrorism, even though this contradicts the provisions of Article 12 of the Law of Ukraine 'On the State Penitentiary Service of Ukraine'.
According to the Law of Ukraine of 20 March 2003 'On the Fight against Terrorism,' terrorism is a socially dangerous activity that consists of the conscious, purposeful application of violence through hostage-taking, arson, murder, torture, intimidation of the population and authorities, or the commission of other encroachments on the life or health of innocent people, or the threat of committing criminal actions for the purpose of achieving criminal goals; a terrorist act is a criminal act in the form of the use of weapons, the commission of an explosion, arson, or other actions, responsibility for which is provided for by Article 258 of the CC of Ukraine. Article 4 of the Law defines the subjects of the fight against terrorism, among which the Department is included.
Part six of Article 5 of this Law provides that the Department carries out measures for the prevention and suppression of terrorist-oriented crimes at facilities of the penitentiary system. In other words, within its competence, the Department can fight terrorism. But the law does not establish norms regarding the necessity of creating for this purpose any militarized formations other than those already provided for by current legislation.
As we can see, the concept of 'terrorism' given in this Law is factually identical to the actions of terrorizing convicts given in Article 392 of the CC of Ukraine. In this connection, it seems highly strange why this task needs to be separately 'written out' in the Regulations? Perhaps solely for the unfounded and unjustified expansion of the tasks and functions of the SPU under the guise of the 'fight against terrorism.'
As for the prevention of terrorist-oriented crimes and acts provided for by Article 258 of the CC of Ukraine—it is not clear why their prevention cannot be carried out in the general order. Operational structures function in all correctional facilities, which are tasked with the prevention of crime in correctional facilities. And why are these units not capable of performing their assigned duties independently?
Moreover, the Law of Ukraine 'On the Fight against Terrorism' does not provide for the exercise of such activity by any specially created militarized formations; it only states: 'The Department carries out measures for the prevention and suppression of terrorist-oriented crimes at facilities of the SPSU.'
One cannot ignore the circumstance that the SPU is not a subject of the fight against terrorism in accordance with the mentioned law. It draws a clear distinction: subjects that directly carry out the fight against terrorism within their competence—the Department (I draw attention to this—specifically the Department, not formations created by it); other subjects involved in the fight against terrorism (among which no specially created formations are mentioned).
I want to emphasize once again that in accordance with the Law 'On the SPSU', the Department is NOT endowed with the right to create any militarized formations, except for those included in the structure of the SPSU by this law (that is, formations designed for their protection and the prevention and suppression of actions that disrupt the work of correctional facilities). The Law of Ukraine 'On the Fight against Terrorism' also does NOT endow the Department with powers to create separate MILITARIZED formations for the prevention of terrorism.
Under such circumstances, the creation of a separate unit to fight terrorism is not just illegal, but also creates conditions for the unjustified expenditure of state funds on the maintenance of the SPU.
The main goal of creating the SPU—influencing convicts through the participation of this unit in searches and inspections—directly follows from the content of Section 7 of the Regulations, which is mainly devoted to the search procedure.
It should be recalled that in practice, there have already been attempts to create similar militarized formations with broad powers within the Department, but the regulations on them (which, by the way, differed almost in nothing from this draft) were canceled due to non-compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. Now the Department is trying to bring back to life an act identical in content.
The above is not the only unjustified expansion of legislative provisions. In particular, according to Clause 3 of the Regulations, the main tasks of the SPU include:
3.1. Prevention and suppression of terrorist-oriented crimes and other crimes at facilities of the SPSU of Ukraine.
3.2. Prevention and suppression of actions that disrupt the work of correctional facilities.
3.3. Participation in measures to ensure the regime and its main requirements in correctional facilities and pre-trial detention centres.
3.4. Interaction with special units of other law enforcement bodies in the sphere of fighting terrorism and crime.
As we can see, such a task as participation in measures to ensure the regime and its main requirements in correctional facilities and pre-trial detention centres is not provided for by any legislative act for militarized formations of the SPSU.
Therefore, the Regulations unjustifiably expand the range of SPU tasks in accordance with their purpose established by the Law. In other words, a 'correction' of legislative provisions is taking place at the level of a departmental act, which is unacceptable, since the latter cannot correct the primary source—the laws.
4. SPU Functions
4.1. Prevention and suppression of terrorist-oriented crimes at facilities of the SPSU of Ukraine, including within the framework of an anti-terrorist operation conducted by the Anti-Terrorist Centre or a coordination group under the corresponding regional body of the Security Service of Ukraine.
As has already been determined, this is a function of the Department itself.
4.2. Participation in the detention of armed criminals on the territory of facilities of the SPSU of Ukraine.
One cannot fail to draw attention to a certain uncertainty in the terminology of the Regulations. For instance, the term 'criminal' is quite often used in its text. At the same time, the SPU has quite broad powers regarding the use of physical force and other means against a person called a 'criminal.' The question arises—what exactly should be understood by this term? Who is (who should be considered) a criminal? In Clause 1.2 of the Regulations, which is devoted to explaining terms, such a formulation is absent. No other legislative act provides a definition for this concept. As a result, it seems that in practice, it will be impossible to exclude cases where the label 'criminal' will be 'stuck on' exclusively at the discretion of SPU or Department representatives to any person, for example, a relative of a convict who has violated some legal prescription.
In Clause 6.3 of the Regulations, the concepts of 'convict,' 'criminal,' and 'offender' are separated altogether. Taking into account the lack of definition of their content, we can assume the possibility of leveling them in practice during SPU activities.
4.3. Participation in measures for the search and detention of convicts and persons in custody who have escaped from custody or arbitrarily left the place of serving a sentence, including within the framework of an anti-terrorist operation conducted by the Anti-Terrorist Centre or a coordination group under the corresponding regional body of the Security Service of Ukraine.
Regarding this 'function,' there is only a question: Why are corresponding existing structural units of bodies and institutions for the execution of sentences not capable of performing this, especially since the search for such persons is entrusted to Internal Affairs bodies? Why create a separate unit for this? Is the definition of such functions aimed at creating the impression of the necessity of creating an SPU?
Moreover, it is not taken into account that by the general meaning, functions are objectively necessary directions of activity that express the essence and purpose of the corresponding structure. The term 'function' translated from Latin means execution, accomplishment. In a broad sense, it is a duty, a role that the corresponding institute or process performs in relation to the whole, a characteristic of the direction or aspect of activity. SPU functions are nothing more than a characteristic of exactly what it 'does' and how.
The SPU functions named in Clauses 4.2, 4.3, 4.5 – 4.7 of the Regulations are defined using the terms 'participation' (in conducting, in measures) and 'assistance.' So, such a definition of functions allows for the conclusion that the SPU is an entity of 'assistance' that is not endowed with independent functions, but only participates in measures that are performed by other units and services. So is it appropriate to introduce a new formation exclusively for the purpose of help, to perform an 'auxiliary' role? There are no own SPU functions in the Regulations.
4.4. Execution of measures provided for by the introduction of a state of emergency or martial law, a regime of special conditions in the area of location of SPSU facilities in cases of natural disasters, epidemics, accidents of systems important for life support, mass riots, manifestations of group disobedience of convicts and persons in custody, in case of an attack (including an armed one) or the emergence of a real threat of such an attack on SPSU facilities, suppression of group unlawful actions of convicts and persons in custody and liquidation of their consequences.
The remark regarding the understanding of functions also refers to the content of this clause. The Penitentiary Code of Ukraine does not establish a special procedure for making a decision on strengthening protection, supervision of convicts, or carrying out other additional regime measures: it must be taken by the head of the institution for the execution of sentences in coordination with the management of the territorial administration of the State Department of Ukraine for the Execution of Sentences. The only exceptions are cases of the need to suppress group unlawful actions of convicts and liquidate their consequences—for this, by decision of the Head of the Department, the head of the administration (department) of the Department in the Autonomous Republic of Crimea, region, city of Kyiv, and Kyiv region, the forces and means of the colony, bodies and institutions for the execution of sentences are used, and in case of need, with the permission of the Minister of Internal Affairs of Ukraine, the head of the Main Directorate of the Ministry of Internal Affairs of Ukraine in the Autonomous Republic of Crimea, city of Kyiv, Kyiv region, the head of the administration of the Ministry of Internal Affairs of Ukraine in the region, city of Sevastopol—the bodies and subdivisions of the Ministry of Internal Affairs of Ukraine.
Since the grounds and procedure for the use of forces and means of the colony are already provided for in the law—it seems superfluous to fix in the Regulations a function similar to '...execution of measures provided for by the introduction of....'
4.5. Participation in conducting inspections and searches of convicts and persons in custody, their belongings, inspections of other persons and their belongings, vehicles that are on the territory of SPSU facilities where regime requirements are established, as well as in the seizure of prohibited items and documents.
Why are the departments of protection, supervision, and security of colonies not capable of performing this task? What is the urgent necessity of creating an additional unit for these functions?
4.6. Participation in measures to ensure law and order, compliance with regime requirements, rules of internal order in correctional facilities, pre-trial detention centres, and on the territory adjacent to them.
4.7. Participation in measures to ensure the safety of convicts and persons in custody, personnel, and citizens who are at SPSU facilities.
4.8. Assisting the operational units of the Department, its territorial management bodies, correctional facilities, and pre-trial detention centres in conducting operational-search measures.
See the comment on Clause 4.5.
At the same time, we have a non-compliance with the Penitentiary Code of Ukraine.
4.9. Participation in measures for organizing the movement (transportation by special transport or accompaniment on foot to places of serving sentences) of particularly dangerous convicts and convicts to life imprisonment.
Immediately, the question arises: what exactly is understood by the term 'particularly dangerous convicts'? Who and in what order will 'stick' the label 'particularly dangerous' on a convict? By what regulatory (not to mention legislative) act is such a concept provided? A similar norm creates grounds for limiting rights, humiliating the dignity and honor of convicts in violation of current legislation.
Moreover, it is unclear how this provision relates to the procedure for moving and escorting convicts established in regulatory acts? Since such actions fall within the competence of internal troops—it is necessary to coordinate with this body the possibility and cases when the SPU participates in this activity.
4.10. Planning, organizing, and conducting training (exercises) for commanders and training for the practical actions of the personnel of rapid response groups of correctional facilities and pre-trial detention centres.
The above point, in essence, represents not a function, but one of the areas of work, a basis for organizing activity, in view of which its inclusion in the list of functions is unjustified.
In fact, they are trying to assign to the SPU, contrary to the law, a very wide range of functions, the main one of which is the possibility of involving the SPU in conducting searches and inspections. At the same time, the majority of them (or rather—all, with the exception of one function) are 'auxiliary' in nature and do not correspond to the functional purpose of the SPU.
Of dubious attention, in my opinion, is also Section 7 of the Regulations—'Conducting special measures.'
In it, first of all, a certain confusion is evident. Thus, Clause 7.3 provides for the compilation of a schedule for involving the SPU in conducting searches and inspections. But Clause 7.6 defines that during the conduct of an inspection and search '...the SPU personnel, as a rule, are in reserve...' (!!!). So why then compile schedules (Clause 7.3) and plan SPU participation in searches and inspections at all?
The necessity of a plan and, therefore, the content of Clause 7.3 are factually refuted by the norm of Clause 7.5, which indicates that the involvement of the SPU '...is carried out both according to the plan and outside it...'.
It is impossible from the text of the Regulations to determine clearly the grounds and procedure for involving the SPU. Thus:
- according to Clause 7.5, SPU involvement is carried out on the basis of a plan or by order of the Head of the Department or the heads of territorial administrations;
- Clause 7.6 provides that the involvement of SPU personnel takes place 'in cases, in the order, and according to the rules determined by regulatory legal acts of the Department' (!!!). However, at present, there is NOT A SINGLE act that would provide for the cases, order, and rules for involving the SPU in search work (!!!);
- Clause 7.11 points to the possibility of involving the SPU in conducting special measures to maintain law and order, stabilize the operational situation, prevent, suppress, or liquidate the consequences of other crimes...
As we can see, there are very many grounds for introducing the SPU.
Quite 'interesting' also seems the definition of the territory to which SPU powers extend. According to Clause 1.2 of the Regulations, the facilities include: the central body of executive power on the execution of sentences with special status, its territorial management bodies, units of the penitentiary inspection, correctional facilities, pre-trial detention centres, militarized formations, educational institutions, health care institutions, enterprises of institutions for the execution of sentences, other enterprises, institutions, and organizations that are created to ensure the fulfillment of the tasks of the SPSU of Ukraine, the territory adjacent to them. Since it follows later from the text of the Regulations that the SPU applies corresponding measures at SPSU facilities, we can see that the SPU is endowed with the right, for example, to participate in the search of official offices of employees of the Central apparatus, to apply physical force and special means to them (although this does not correspond to the provisions of current legislation). Or—to commit similar actions against citizens who are on the territory adjacent to the institution for the execution of sentences. Not excluded (because it is allowed by the Regulations) is also the possibility of introducing the SPU into the National Law Academy of Ukraine named after Yaroslav the Wise, in particular, its faculty No. 9, and conducting there a 'planned, according to the schedule' search. A similar action directly contradicts current legislation, for example, the CPC.
The thesis about the possibility of introducing the SPU for the suppression of other crimes (Clause 7.11) factually grants the right to involve this militarized formation at the discretion of Department officials at any time. Even a theft in a colony falls under the category of 'other crimes.' Such uncertainty is unacceptable, because it creates conditions for abuse and uncontrolled, unfounded, and punitive influence on convicts.
The formulation of Clause 7.9: '...unfounded damage to clothing, property, inventory, etc. is not allowed' raises the question of on what grounds such damage is allowed?
Unclear is also the definition given in Clause 7.11 regarding what exactly should be considered 'maintaining law and order, stabilizing the operational situation, etc.,' because as practice shows, it is precisely by references to these goals that the overwhelming majority of negative measures applied to convicts and other persons are justified.
And finally, one more remark. Clause 9.2 enshrines a prohibition on disseminating through mass media information that '...aims (...) to justify the unlawful behavior of convicts....' Thus, the Department factually prohibits its personnel from admitting their own actions to be unlawful, which has led to unrest among convicts. As a result, we have an attempt to introduce in the system a presumption of guilt regarding convicts and a presumption of innocence regarding personnel.
The listed shortcomings are not exhaustive. But even such a superficial analysis of the draft allows us to assert that in such an edition, the Department is trying to shift punitive functions to the SPU with the goal of creating a unit for unlimited and uncontrolled influence on convicts and other persons, the arbitrary use of physical force, and special means. The consequences of such actions will be irreparable.
Therefore, I consider it impossible to adopt this act in such an edition, because the very idea of creating an SPU with the named goals and tasks grossly violates the rights of convicts and other persons, as defined not only by the Penitentiary Code and other legislation of Ukraine but also by the Convention for the Protection of Human Rights and Fundamental Freedoms.

Candidate of Legal Sciences Iryna Yakovets