The penal enforcement system of Ukraine in 2012. PRESS RELEASE

The main results of the activities of the State Penitentiary Service of Ukraine in 2012 are presented

Human Rights Organization ‘Donetsk Memorial’

22 February 2013

Statistical data

According to data from the SPSU, as of 01.01.2013, there were 147,112 people in 182 places of deprivation of liberty (here and hereinafter in brackets as of 01.01.2012 - 154,029 people); over the year, the number of persons in places of deprivation of liberty decreased by 6,917 people (- 4.49%). For January 2013, this number decreased by another 1,923 people – to a record low level of 145,189 people.

The decrease in the number of prisoners in 2012 was achieved almost exclusively (by 98%) due to a significant decrease in the number of inhabitants in pre-trial detention centres. The number of convicts decreased over the year from 115,068 people to 114,994. They are held in 141 penal execution institutions.

During 2012, 50,271 newly convicted persons entered penal execution institutions (49,198 people in 2011, 41,411 people in 2009), and 41,399 people were released (41,362), including 19,108 people (18,812 people) released on parole. This accounts for 43% of the number of persons who formally fell under the parole criteria.

The number of life-term prisoners increased over the year by 53 people (by 61 people in 2011, by 90 people in 2010) and amounted to 1,810 people (1,757 people). The number of women serving life sentences at the beginning of 2003 was 7, in 2005 – 11, and in 2012 there were 21. They are held in Kachanivska Penal Colony No. 54 (Kharkiv). Those sentenced to terms exceeding 10 years account for 13,200 people (12,600 people).

The number of inhabitants of the 32 operational pre-trial detention centres in 2012 decreased from 37,632 people to 30,854 people (- 18%). Of these, 2,483 people (4,156 people) are at the stage of pre-trial investigation, and 14,212 people (16,871 people) are at the stage of judicial investigation (until the verdict is handed down). Among them are 2,289 women (2,618 people) and 455 minors. For January 2013, the number of inhabitants in pre-trial detention centres dropped to a record low level of 28,743 people.

There are 152,321 people registered in the 697 units of the criminal-executive inspection (168,024, or -8.8% over the year) who have been sentenced to criminal punishments not related to deprivation of liberty, and administrative penalties.

The activities of the State Penal Enforcement Service of Ukraine are provided for by 48,500 employees, with a staff size of 54,100 positions.

According to data obtained by ‘Donetsk Memorial’ from the Ministry of Internal Affairs, 256,100 people were held in 467 temporary detention facilities (ITT) of Ukraine, with a capacity of 8,696 places, throughout 2011, and 110,100 people in the 6 months of 2012.

Legislation.

Many problems in the observance of human rights in penal execution institutions exist due to imperfect legislation. The Criminal-Executive Code (CEC) and the regulatory acts of the agency contain a number of norms that are a violation of the Constitution of Ukraine. In addition, there are a number of spheres of the agency's activity that lack regulatory governance.

Examples of the first kind are the non-processing of pensions for convicted persons in places of deprivation of liberty if they acquired the right to a pension during the serving of their sentence. This also applies to the right to receive compensation for the loss of ability to work during imprisonment. But there is a norm of the CEC that does not allow this.

Another important issue is the lack of social insurance for working convicted persons, and the non-accrual of contributions to the Pension Fund during their work while imprisoned. Neither pension legislation nor the Constitution contains such requirements. Therefore, in order for the time worked in the colony to be credited to their employment record, a person must pay contributions to the pension fund themselves after release.

Examples of the second kind are the illegality of using special-purpose units of the SPSU without a proper regulatory-legal basis. As early as 14 January 2008, the state registration with the Ministry of Justice of the Department’s order, which approved the Regulations on these units, was cancelled. Despite this, only during 2010, the special-purpose units were involved in conducting measures in institutions (without a proper regulatory basis) 253 times, and in 2011 – 306 times.

Deputy Minister of Justice A. Yu. Syedov, in a letter dated 28 November 2012, informed ‘Donetsk Memorial’ that the aforementioned ‘regulatory-legal documents of the SPSU have not been registered with the Ministry of Justice’. Thus, the Deputy Minister states, these ‘regulatory-legal acts are considered as not having entered into force and cannot be applied’. But the Penitentiary Service, contrary to the requirements of the country's Constitution, uses them.

Only after ‘Donetsk Memorial’ sent an Open Letter to the Commissioner for Human Rights did V. Lutkovska send a submission to the Ministry of Justice with the demand to stop the use of special units until a corresponding regulatory document is adopted. As of 12 February 2013, the special-purpose units were still being used.

Another example of the penitentiary service ignoring the regulatory provision of its actions is the use of technical surveillance tools for convicts, in particular video surveillance. This is provided for by Art. 103 of the CEC. But its Part 3 stipulates that a list of technical supervision and control tools and the procedure for their use must be determined by departmental documents. And in the absence of a regulatory document, the implementation of Article 103 is impossible: the lack of legal regulation of officials' actions deprives a person of the opportunity to appeal against illegal actions. Without adequate and convincing argumentation for the necessity of video surveillance, its application turns into a whim, an arbitrary act.

One cannot apply video surveillance just because the law allows it. The application of technical means can be justified (and thus ‘legal’) when it is impossible not to use them or when their non-use could lead to serious consequences for the serving of the sentence. The Penitentiary Service is guided by other motives.

In the sphere of access of convicts to medical services, the efforts that the agency makes to improve the situation are not commensurate with the scale of the problem. A litmus test for the level of medical services is the mortality rate and suicides in penal execution institutions.

In 2012, an extremely high level of mortality persisted: 1,021 prisoners died, 179 of them in pre-trial detention centres. And although this is slightly less than the number of deaths in 2011, when 1,169 people died, nevertheless, the 2012 level is 33% higher than the average level for 2008–2010. One of the probable reasons for the growth of mortality in the agency's institutions could be the position of the courts when considering cases about the release of convicts.

The last two years have been marked by a surge in the number of suicides in prisons. If during 2008–2010 and even earlier there were 40–44 suicide cases annually, then in 2011 the growth of suicides amounted to + 34%. In 2012, 65 suicides occurred, including 14 in pre-trial detention centres. This amounts to + 54% over the average suicide level for 2008–2010. The real factors for the significant growth in suicides have not been determined.

Morbidity and mortality in the Department's institutions

Mechanism for submitting and reviewing complaints

In the country's prison system, there is no mechanism for submitting and reviewing complaints. In recent years, there have been absolutely no positive changes. As noted in the previous annual Reports of ‘Donetsk Memorial’, complaints against the administration of institutions do not go beyond the institutions themselves, because all letters are necessarily reviewed, and the prisoner cannot verify whether their letter was actually sent. Complainants are subjected to harassment, and even punishment for making complaints. Investigations are extremely formal and are aimed at protecting the violators from the administration. The confidentiality of correspondence with the court, which is provided for by law, is not maintained, and it is not even observed regarding other structures for which it is provided (Commissioner for Human Rights, European Court). As a result – officially, there is a complete absence of complaints against the administration of institutions. According to the penitentiary service itself, out of the complaints submitted to it per year, 2–3 are confirmed. And in 2012, there was not a single confirmed complaint out of 197 received by the agency's central office.

Prisoners can complain to prosecutors, but they often either do not react to complaints or simulate their verification. In fact, lawbreakers from among the staff of the institutions usually avoid responsibility.

Labour behind bars

In general, across the institutions of the penitentiary service, as of 01.07.2012, out of 118,909 convicts, the number of able-bodied persons was 74,327. Despite the mandatory nature of work in prisons, 31,254 people were involved in work – 26.3% of the number of all convicts (of the number of able-bodied, this is 42%), whereas in all women's colonies, this percentage is 69%.

Not infrequently, the fact of work is not formalised by the administration, which sometimes gives rise to conflicts. The salary is often very low, sometimes 100–200 UAH per month, of which 15–25 UAH remains at the convict's disposal.

There are known cases where for a month of work, a convict earned 15.18 UAH for 27 shifts, and after deductions to their personal account, they were credited with 2 UAH 28 kop. for a month of labour.

The public human rights organisation ‘Donetsk Memorial’, established in 1989, is concerned with the problems of the activities of the penal execution system of Ukraine and monitoring the observance of the rights of prisoners.

The above and other main results of the activities of the State Penitentiary Service of Ukraine (hereinafter – SPSU) in 2012 are contained in the eighth annual Report ‘Observance of the Rights of Prisoners in Ukraine-2012’. It was prepared by the human rights organisation ‘Donetsk Memorial’ and contains facts and information regarding the observance of human rights in the institutions of the penal execution system of Ukraine.

The main sources of information for the Report were the results of projects and research carried out by the organisation, materials from seminars and conferences, information placed on the Internet sites of the ‘Prison Portal’ and the penal execution system (www.kvs.gov.ua), responses from state institutions to requests from ‘Donetsk Memorial’, the work of the Public Reception Office on Human Rights, publications in the media, individual letters and appeals from citizens who are in the system's institutions, and their relatives.

The full text of the report ‘Observance of Human Rights in Ukraine-2012’ (preliminary version) is posted on the ‘Prison Portal’ www.ukrprison.org.ua.

The final version of the 2012 Report and recommendations will be published by 17 March on the ‘Prison Portal’.

Human rights organisation ‘Donetsk Memorial’ - contact person Oleksandr Bukalov, 099-709-5679

tel./fax 8-062-304-1471 www.ukrprison.org.ua P.O. Box 4836, Donetsk, 83092

The press release was prepared and distributed within the framework of the project

‘Strengthening the legal capabilities of vulnerable groups of the population in society in the protection of their rights’,

which is being carried out by ‘Donetsk Memorial’ and the Ukrainian Helsinki Human Rights Union

with the financial support of the European Union

CONCLUSIONS

of the report ‘Observance of the Rights of Prisoners in Ukraine-2012’

1. Out of forty proposals in the previous Report, one was fulfilled, two were partially fulfilled, and thirty-seven proposals were not fulfilled. This is a record low level of implementation of recommendations.

2. The number of prisoners in Ukraine has noticeably decreased for the first time in the last four years – if in mid-2011 their number was 157,866, then as of 01.01.2013, it was 147,112. This decrease in 2012 happened 98% at the expense of the number of prisoners in pre-trial detention centres – from 37,632 people to 30,854 people, whereas the number of convicts decreased over the year by only 74 people – to 114,994 people.

3. There are 323 people per 100,000 of the population behind bars in Ukraine (a year ago - 345 people).

4. The level of unjustified application of a preventive measure – being taken into custody – has decreased somewhat; in 2012, 11,036 people were released from pre-trial detention centres (a year ago - 14,300 people). The overwhelming majority of them received small sentences, which hardly justifies their placement in a pre-trial detention centre.

5. The number of life-term prisoners increased over 2012 by 53 people and amounted to 1,810 people as of 01.01.2013. The issues of humanising the conditions of their detention are not being resolved, and the corresponding recommendations of the European Committee for the Prevention of Torture have not been fulfilled for over 12 years.

6. The growth in the number of HIV-infected persons has slowed down; in 2012, their number increased by 47 people – to 6,957 people, whereas in 2011 the growth was 890 people.

7. It is impossible to assess trends in 2012 with prisoners suffering from tuberculosis due to the agency's failure to provide reliable data.

8. In 2012, 1,021 prisoners died, 179 of them in pre-trial detention centres. Although this is somewhat less than the 2011 level, it is nevertheless 33% higher than the 2008–2010 level. Perhaps one of the factors for the growth is the refusal of courts to release severely ill convicts. The number of suicide cases reached 65 – 54% above the 2008–2010 level. The real factors for the significant rise in suicides have not been determined.

9. Medical services in the institutions of the penal execution service remain at an extremely low level. There is a lack of funding for the provision of medical services and qualified medical personnel in prisons.

10. Medical workers are not independent of the prison leadership; they are employees of the agency and often neglect professional conscientiousness in favour of the requirements of the prison leadership. There is no responsibility of institution staff for the non-provision or improper provision of medical assistance to prisoners.

11. The issue of re-subordinating prison medical structures and transferring them to a medical agency remains ignored by both the agency and the leadership of the state.

12. The practice of adopting departmental documents in 2012 deteriorated. After the adoption of amendments to the Criminal-Executive Code on 21 January 2010, the corresponding amendments to the Internal Regulations have not been made for over three years.

13. Despite the recommendations of the annual Reports, discrimination persists over the last few years, and social insurance is not implemented for working convicts, with mandatory contributions to the Pension Fund, despite the absence of legislative grounds for this. Such an attitude towards the payment of convict labour is a violation of the Constitution of Ukraine. Neither the Verkhovna Rada nor the President wishes to see this problem and resolve it.

14. Discrimination persists, and pensions are not formalised for prisoners based on age or disability from the moment they acquire such a right. Calls to the agency to stop violations of the Constitution in this matter are steadfastly ignored.

15. The Criminal-Executive Code contains a prohibition on compensating for the loss of ability to work for convicts during the serving of their sentence from the moment of its onset, which is a violation of the Constitution of Ukraine and is discrimination.

16. Clear procedures for fixing involvement in labour and its payment are often not applied, and convicts are not given the opportunity to monitor the correctness of the certification of their work and its volumes. The use of unpaid labour is widely applied.

17. There is no state programme aimed at a substantial reduction of the prison population, in which clear indicators of its implementation would be provided.

18. The high level of violations of convicts' rights is not decreasing. This concerns not only the conditions of detention but also the treatment of prisoners by staff. Numerous cases of extortion for improving detention conditions remain, as do cases of unjustified and artificial refusal to submit documents for parole, in matters of involvement in labour and its payment, etc.). Documents are submitted to court for less than half of the convicts who become eligible for parole.

19. The existing practice of treating prisoners is built on the strict demand from the institution administration for the unquestioning obedience of prisoners. This is supplemented by the absence of an effective mechanism for submitting and reviewing complaints and the lack of a reliable procedure for sending letters by prisoners. For 2012, there is not a single satisfied complaint out of those received by the central agency. Punitive measures are applied to prisoners who protest and complain.

20. There is de facto censorship of correspondence. There is no confidentiality of prisoners' appeals to the court.

21. There is no progress in the sphere of providing legal aid to convicts; isolated examples of the provision of free legal aid to convicts by non-governmental organisations do not significantly influence the general situation.

22. The personnel problem remains acute. The level of social security for staff remains unacceptably low. The prestige of the penitentiary worker profession is too low. No measures are being taken to correct the situation.

23. Corruption is widespread among prison staff, especially in the application of parole. The true scale of it is difficult to estimate. Cases of exposing corruption do not significantly affect its general level.

24. In matters of educating staff in the sphere of human rights observance, the agency's leadership supports some initiatives of non-governmental organisations and engages their resources, but takes an inconsistent position and often ignores other public initiatives.

25. Cooperation with the public remains very limited.

26. As before, public monitoring of the observance of the rights of convicts and prisoners as a systemic activity is absent.

27. Independent inspection mechanisms for monitoring the observance of human rights in the activities of institutions of the prison system and the police have not been created. There are no independent inspection mechanisms.

28. Local government bodies sometimes indifferently treat the creation and proper functioning of supervisory commissions, and the commissions they have created do not actually work and do not perform their main function of public monitoring.

29. The procedures for placing convicts in colonies and their transfer are subordinated solely to the interests of the agency; convicts are often unjustifiably placed far from where their relatives live and are then artificially refused a transfer to serve the sentence closer to where their relatives reside.

30. The level of media coverage of events in the activities of the penal execution service has noticeably increased. The general level of bias in covering these issues has decreased somewhat.

31. In 2012, the level of the agency's involvement in political processes in society noticeably increased. Employees of the system become hostages of political confrontation and are used in political struggles. This is accompanied by numerous violations of fundamental human rights.