Problems in the Execution of European Court of Human Rights Judgments in the Penitentiary Sphere

The problem of executing judgments of the European Court of Human Rights (ECtHR, the Court) in the penitentiary sphere of Ukraine, which are delivered following the establishment of violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), is becoming increasingly urgent. Violations in this area constitute a significant portion of all violations established by the ECtHR in cases concerning criminal prosecution.
In January 2013, the judgment in the case of ‘Karabet and Others v. Ukraine’ was delivered, whereby Ukraine was obliged to pay nearly half a million euros in compensation for violations committed by a special forces unit in Iziaslav Penal Colony No. 31 in 2007[i]. Nevertheless, this unit continues to operate to this day and, incidentally, illegally, as the regulatory act that governed its activity has long been invalid due to the cancellation of its registration[ii]. Its functioning is one of the most vivid examples of the problem of executing ECtHR judgments, which consists of executing the part of the judgment concerning monetary compensation to the person whose rights were violated, while failing to properly ‘remove the causes and conditions’ that led to the violation. As can be seen from the Karabet case, compensation was paid to the victims, but the special forces unit continues to function illegally, which the State Penitentiary Service of Ukraine (SPSU) even boasts about[iii]. A similar situation exists with other ECtHR judgments concerning the sphere of activity of the SPSU.
What must be executed and how, following the delivery of an ECtHR judgment, is enshrined in the Law of Ukraine ‘On the Execution of Judgments and the Application of the Practice of the European Court of Human Rights’ of 23 February 2006 (the Law). In general, the scheme is as follows: delivery of an ECtHR judgment—payment of compensation, restoration of the legal status that the person had prior to the violation (*restitutio in integrum*)—general measures.
In simple terms, general measures involve the removal of the aforementioned ‘causes and conditions’ that led to the violation of the Convention. This may manifest in amendments to current legislation and the practice of its application; amendments to administrative practice; ensuring the legal expertise of draft bills; ensuring professional training on the Convention and ECtHR practice for employees of state authorities, including those whose activities are related to holding people in conditions of deprivation of liberty; and other measures determined by Ukraine in accordance with the Judgment, with the aim of ensuring the elimination of systemic deficiencies, the cessation of Convention violations caused by these deficiencies, and the ensuring of maximum compensation for the consequences of these violations.
We have conducted a small study on how carefully the responsible persons—who, in accordance with Article 16 of the Law, ‘in case of non-execution or improper execution of a Judgment… shall bear administrative, civil, or criminal liability provided by the laws of Ukraine’—treat the execution of ECtHR judgments.
A request for information regarding general measures aimed at eliminating systemic problems in the sphere of activity of agencies and institutions for the execution of sentences that led to violations of the Convention in 2011–2012 was sent to the Government Agent before the ECtHR (the Agent), N. Kulchytskyi, who is directly responsible for the proper organisation of ECtHR judgment execution. Specifically, the request concerned copies of documents that had been sent to the SPSU on this matter, information regarding responses to them, and the implementation of proposed measures by the penitentiary service. In response, Mr Kulchytskyi provided a rather ‘European’ answer, which showed the level of transparency of his activities:
‘Regarding your request to provide copies of letters sent to the State Penitentiary Service of Ukraine and its subordinate bodies and institutions within the framework of taking general measures for the execution of European Court judgments, I note that in accordance with Article 9 of the Law of Ukraine "On Access to Public Information," information containing recommendations, related to the work of a direction of an institution’s activity or the process of decision-making, and preceding the adoption of decisions, is official information, and therefore access to it is restricted.
Since both the letters to the State Penitentiary Service of Ukraine and its subordinate bodies and institutions and the submissions to the Cabinet of Ministers of Ukraine are documents containing proposals and recommendations regarding the taking of general measures for the execution of European Court judgments and precede the adoption of decisions by relevant bodies, the documents you requested cannot be provided.
As regards providing the responses of the mentioned bodies, the Ministry of Justice is not the administrator of this information within the meaning of the provisions of the Law of Ukraine "On Access to Public Information," and therefore, in order to obtain them, you should apply directly to the State Penitentiary Service and its subordinate bodies and institutions.’
These arguments are obviously groundless: the norm regarding the non-provision of information preceding the adoption of a decision concerns the decisions of the same state body that prepares them, not another state body that, on the basis of this information, must adopt its own decisions. Furthermore, we were requesting recommendations of the Government Agent that had already been adopted and sent to the State Penitentiary Service, which, moreover, concern human rights—such information cannot be classified as official.
SPSU responses to our subsequent requests showed an incomplete, superficial reflection of circumstances in the Agent’s submissions on the execution of ECtHR judgments that led to violations of the Convention. This means that general measures in such cases are indicated incompletely and insufficiently, and thus, the SPSU itself cannot always adequately take all measures regarding the elimination of systemic problems in the activities of its subordinate institutions, as it only executes what the Government Agent sends it; if the Agent does not indicate a particular circumstance of the case that led to a violation in their submission to the SPSU, there is a high probability that it will remain ignored and will continue to lead to ongoing Convention violations in the activities of the SPSU.
An example of an irresponsible attitude towards the execution of ECtHR judgments is the judgment in *Trosin v. Ukraine*, in the submission regarding the execution of which the Agent indicated that general measures for the execution of this judgment are:
— ensuring the right of persons held in custody to respect for correspondence, as required by Article 8 of the Convention;
— non-obstruction of persons held in custody in the exercise of their right to submit an individual application to the European Court in accordance with Article 34 of the Convention.
A request was also expressed to consider issues regarding possible ways to resolve problems that became the basis for the European Court’s finding of a violation of Article 8 of the Convention.
Here is what measures the SPSU took:
1. Brought information about the Convention violations established in these judgments to the attention of SPSU personnel.
2. Prepared a draft order of the Ministry of Justice ‘On Approval of the Instruction on the Organisation of Inspection of Correspondence (Letters) of Persons Held in Penal Institutions and Pre-trial Detention Centres,’ which is under review in structural subdivisions of the Ministry of Justice of Ukraine.
Apart from the fact that the aforementioned regulatory legal act has not been adopted to this day, and the right of prisoners to correspondence continues to be violated according to the current instruction on the inspection of correspondence[iv], which has not changed since 2008, the SPSU completely ignored the Agent’s request to ‘consider issues regarding possible ways to resolve problems that became the basis for the European Court’s finding of a violation of Article 8 of the Convention,’ which, in our opinion, is a consequence of both the negligence of the SPSU and the Agent’s use of general, non-specific requirements regarding general measures. At the same time, the judgment itself discusses a wide range of violations of Article 8 of the Convention, which were completely left out of consideration.
Indeed, the applicant complained that visits with relatives took place under the supervision of a colony employee only through a glass partition and using a telephone receiver, and also that the possibility of visits once every three months was an excessive restriction. Furthermore, the applicant was permitted to have visits with only three adults at a time, whereas he maintained contacts with his mother, wife, brother, and son (who reached adulthood in 2010). The Court, in Paragraph 42 of the judgment, indicated that the restrictions on the frequency and duration of visits were automatic and did not allow for any degree of flexibility. Although ‘the Court considers that the regulation of these matters cannot be considered as inflexible restrictions, and states should develop their techniques for assessing the proportionality of restrictions, which will allow authorities to balance competing individual and public interests and take into account the specifics of each case.’ Therefore, the Court pointed out that an approach where all life-sentenced prisoners are permitted a pre-fixed number of visits with a pre-fixed duration, without the possibility of taking an individual approach into account, should not be allowed. Incidentally, this problem concerns not only life-sentenced prisoners but also those sentenced for a specific term, whose number and duration of visits are also fixed by the Criminal-Executive Code of Ukraine and do not allow for any flexibility.
The Government of Ukraine justified the limitation of the number of people allowed to be present during a visit to three adults by practical considerations, such as an insufficient number of places in visiting rooms and booths. To this, the Court pointed out that the government, relying again on inflexible restrictions, did not wish to make any attempt to solve the problem. Likewise, the necessity of an overseer’s presence during visits was implemented without taking individual risks into account, and therefore unjustifiably did not allow for any privacy. In addition, individual risk was not taken into account in the fact that there was no possibility for physical contact between relatives and the convict during a visit due to the glass partition. Taking all these remarks into account, the Court established a violation of the convict’s right to privacy (Article 8 of the Convention).
Regarding all these remarks, the SPSU did not take any steps to take them into account in its activity, and today, both the procedure for conducting visits and their duration and frequency are in contradiction with the requirements of the Convention and lead to rights violations for more than 100,000 convicts across Ukraine. This is an example of the consequence of failed, inattentive study and execution of ECtHR judgments.
A similar situation applies to the case of *Ustyantsev v. Ukraine*[v], where the Agent, among the general measures, points only to ensuring proper conditions of detention for persons in custody and bringing the legal positions of the ECtHR to the attention of SPSU employees. A summary of this judgment was also sent to the SPSU. For its execution (according to an SPSU letter to the Agent), the following measures were taken: information about the violation was brought to the attention of SPSU personnel, and the judgment was included in training programmes for the preparation and professional development of personnel of agencies, penal institutions, and pre-trial detention centres. Also, for its execution, the SPSU issued an instruction to territorial management bodies (dated 17.05.2012 No. 2/2/2-2749/Sd). Our analysis of this instruction shows that it obliges the heads of territorial bodies to bring the provisions of the judgment to the attention of the personnel, provide information regarding measures taken to bring the conditions of detention of convicts and those under investigation into compliance with current legislation, analyse the overcrowding of pre-trial detention centres in detail, study the reasons for the increase and decrease in the number of detainees, exclude cases of ill-treatment, and implement other measures generally aimed at reducing the number of prisoners in institutions. In doing so, the fact that conditions of the applicant’s detention in the pre-trial detention centre—which included not only the institution’s overcrowding but also the inadequacy of the cell lighting regime (it was left on around the clock)—led to the violation of Article 3, was completely overlooked. This resulted in the fact that, effectively, this part of the judgment remains unexecuted, and lighting in SPSU institutions continues to be left on around the clock. It appears that this is the fault not only of the SPSU but also of the Agent, who explained the general measures that need to be taken too ‘vaguely,’ practically using only one phrase: ‘ensuring proper conditions of detention for persons in custody.’
In the case of ‘Kaverzin v. Ukraine’[vi], the Court unanimously recognised a violation of Article 3 of the Convention in connection with the application of handcuffs to the applicant in Dnipropetrovsk Penal Colony No. 89, specifically in the ‘hands behind the back’ position, while he was blind and required outside assistance to ensure his vital needs. He was forced to be in handcuffs even during family visits and walks (Paragraph 151 of the Judgment). Also, by the Court’s instruction, the systematic nature of applying handcuffs to life-sentenced prisoners was recorded by the Committee for the Prevention of Torture during its visit to Ukraine in 2005. Such a violation is clearly indicated in the Submission on the Execution of ECtHR Judgments to the Cabinet of Ministers of Ukraine dated 28.09.2012; however, the Agent did not indicate measures that should be taken to prevent the violation in the future. Perhaps this is exactly what became the reason for the not-entirely-successful development of general measures subsequently.
Thus, the SPSU sent an instruction to territorial bodies which: ‘emphasised the necessity of excluding cases of ill-treatment of persons held in custody and convicts, the commission of intentional actions against them that cause physical or moral suffering, or humiliate human dignity. When applying handcuffs to persons held in custody and convicts, including those sentenced to life imprisonment, they are obliged to take into account their physical disabilities and the degree of social danger, while adhering to personnel safety measures.’
The SPSU also indicated that this judgment was taken into account when developing the Internal Rules of Penal Institutions and Pre-trial Detention Centres. As for pre-trial detention centres, indeed, in the new scandalous internal rules[vii], it is enshrined that handcuffs are applied in cases of ‘removal from cells and transfer of life-sentenced convicts, detainees, and convicts inclined towards escape, attack on the administration, and taking hostages, taking into account the physical disabilities of the detainees and convicts, as well as their state of health.’ However, as can be seen, this norm will allow for the continued application of handcuffs to, for example, the blind, but only taking into account their physical disabilities and state of health, instead of completely prohibiting such application. As for convicts in penal institutions, the rules of their internal order still do not contain norms that would embody the requirements of the ECtHR judgment regarding the application of handcuffs.
Also deserving attention is the poor state of affairs regarding the SPSU’s complaint-handling mechanism, despite the fact that the ECtHR has repeatedly pointed to this problem in its judgments and the Agent has drawn attention to it, pointing to ‘ensuring proper reaction to complaints’ from persons held in institutions subordinate to the SPSU as a general measure for executing the Court’s judgments. In response to such submissions, the SPSU, as a rule, does not indicate anything more significant than: ‘the conduct of a full, comprehensive, and objective investigation of complaints from persons held in custody and convicts regarding ill-treatment is organised and under strict control; the right to defence of persons held in custody is ensured with the provision of necessary legal assistance and legal literature.’ Perhaps precisely because of the lack of a desire, at a minimum, to even enshrine at the level of a subordinate SPSU act a departmental mechanism for reacting to complaints about torture, ill-treatment, and violations of Article 3 of the Convention (prohibition of torture) in the penitentiary sphere remains the most widespread practice to this day. Incidentally, providing legal literature to prisoners in some colonies is inadequate considering its serious obsolescence (editions of criminal-executive codes from 2006, 2007).
Sometimes, mistakes occur in submissions regarding the execution of Court judgments. For instance, in executing the judgment in *Oshurko v. Ukraine*[viii], the then-Government Agent V. Lutkovska, in her submission dated 13.01.2012, pointed to the necessity of ‘improving the practice of conducting investigations into complaints by persons regarding ill-treatment by cellmates,’ whereas in the facts of the case, the applicant, while in custody, was beaten by cellmates (as a result of which he later lost his sight) due to the negligence of detention centre staff—police officers[ix]. That is, the submission demanding the taking of general measures should not have concerned the SPSU at all, as the Convention in this case was violated not in a pre-trial detention centre, but in an institution subordinate to the Ministry of Internal Affairs of Ukraine. Without paying attention to the essential circumstances of the case, to the lack of jurisdiction over the violation, so to speak, the SPSU took the measures proposed by the Agent and reported their execution. It may be that such ‘prevention’ does no harm in terms of preventing the same from happening in a pre-trial detention centre in the future, but it does demonstrate a lack of attention to detail in particular and to the execution of ECtHR judgments in general.
Often, the Agent’s submissions are characterised by brevity in stating general measures, which looks more like a simple indication of a problem rather than ways to solve it. For example, in a submission to the SPSU regarding the *Iglin v. Ukraine* judgment, N. Kulchytskyi indicated that ‘a general measure for the execution of this judgment is, in particular, ensuring proper conditions of detention in custody.’ In the judgment itself[x], the Court pointed to violations concerning ventilation, lighting, food, the state of the toilet, and the quality of medical assistance (the detainee had to treat an ear infection with his own urine). Obviously, the Agent relies on the SPSU and expects that the agency itself will examine the Court’s judgments in detail and guess the specific general measures that need to be taken. Then the question arises: is he performing his functions properly?
Credit must be given to the SPSU for its reaction; to execute this judgment, it issued instruction No. 2/2/2-2932/Sd dated 24.05.2012, and indicated almost all violations found by the Court as needing elimination. True, for example, the provision in the Court’s judgment regarding inadequate food was left entirely unaddressed. Unfortunately, such instructions are sent only to territorial bodies (regional administrations), which (according to the instructions themselves) must only bring them to the attention of the heads of subordinate subdivisions. It appears that it would be desirable to organise detailed familiarisation with important details of ECtHR judgments for the personnel of every penal institution or pre-trial detention centre, especially those where a violation recognised by the Court occurred. But this requires prior qualified analysis of each judgment by the SPSU itself, which, as seen from the above, is not performed at a proper level.
Some SPSU responses to appeals from the Agent, the President of Ukraine, and the Cabinet of Ministers of Ukraine regarding general measures for the execution of ECtHR judgments are characterised by significant generalisation. In particular, practically everything the service is doing to improve its activity is listed, such as the organisation of scientific conferences, training seminars, training of future staff, development of access to education for convicts, and even an agreement on cooperation between a Christian organisation and the SPSU, etc. Speculative is the mention of conducting training for penal institution personnel involving special units as a general measure for executing ECtHR judgments, whereas recently, their activity was negatively assessed in the mentioned *Karabet and Others v. Ukraine* case. Likewise, the use of the SPSU phrasing ‘special means were used in all cases on lawful grounds and in the order defined by legislation and were such that they did not contradict the norms of the European Prison Rules’ raises a smile, as literally a few months after this, the judgment *Kaverzin v. Ukraine* was delivered, which established a gross violation in the application of these means.
The practice of informing SPSU staff of ECtHR judgments is unsettled. While some are brought to the attention of institution staff under signature (*Murukin v. Ukraine*), others are simply ‘brought to the attention of SPSU personnel’ (*Iglin v. Ukraine*, *Todorov v. Ukraine*, *Ustyantsev v. Ukraine*).
In one of the latest Agent’s submissions to the Cabinet of Ministers of Ukraine, the content of the *Yermolenko v. Ukraine* judgment (violation of Article 3 of the Convention due to the denial of proper medical assistance) is simply drawn attention to and laid out in two words, but the ‘ways of resolution’ column contains nothing that would concern the direct resolution of the problem established in the judgment[xi].
The analysis conducted indicates the existence of significant deficiencies in the mechanism for executing ECtHR judgments, both by the State Penitentiary Service of Ukraine and by the Government Agent before the ECtHR. Many essential provisions of the Court’s judgments remain ignored, resulting in some of them not being executed at all.
It is known that a similar situation is observed with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which, together with the deficiencies in the execution of ECtHR judgments, forms an outline of a serious problem in the national approach to the implementation of international human rights standards.
Considering this, it is worth recommending to the State Penitentiary Service of Ukraine separate directions for improving relevant work:
develop a subordinate regulatory act that would regulate the issue of executing ECtHR judgments and CPT recommendations, which arise at the level of the SPSU, territorial bodies, and at the level of individual institutions subordinate to it;
create a separate unit within the SPSU that would be responsible for the proper execution of ECtHR judgments and CPT recommendations;
increase the promptness of departmental rule-making aimed at implementing these judgments and recommendations (a vivid example of a corresponding deficiency is, for instance, the fact that the Internal Rules have not been changed since 2007, although a number of their provisions contradict international standards);
ensure free access on the SPSU website to all information regarding the implementation of CPT recommendations and ECtHR judgments;
develop reports on measures aimed at implementing recommendations or provisions contained in these international standards, with a justification for the non-execution of individual requirements and obstacles leading to this.

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Annual Report of the Human Rights Commissioner of the Verkhovna Rada of Ukraine on the State of Observance of Human and Civil Rights and Freedoms. — K., 2013. — 398 p. // http://www.ombudsman.gov.ua/images/stories/062013/Dopovid_062013.pdf
Valeriya Lutkovska presented the Annual Report on the State of Observance and Protection of Human and Civil Rights and Freedoms in Ukraine at the Verkhovna Rada of Ukraine // http://www.ombudsman.gov.ua/index.php?option=com_content&view=article&id=2732:2013-06-05-10-31-25&catid=14:2010-12-07-14-44-26&Itemid=75
Monitoring places of detention: a practical guide. — Association for Prevention of Torture, Geneva, 2004. — 278 p.
We are analysing only the results of visits to penitentiary institutions, and therefore we cannot express an opinion regarding visits to other institutions. However, a cursory analysis provides grounds to guess that the relevant omissions are general in nature and also apply to visits to other institutions.
Ibid. — pp. 11–12.
Monitoring places of detention: second annual report of the United Kingdom’s National Preventive Mechanism 1 April 2010 - 31 March 2011. — The Stationery Office, 2012. — P. 18-26.
Problems of Ensuring the Rights of Convicts in the Criminal-Executive System of Ukraine. / V.A. Badyra, O.P. Bukalov, A.P. Hel, M.V. Romanov, I.S. Yakovets; under the general editorship of E.Yu. Zakharov. Kharkiv Human Rights Protection Group. – Kharkiv: Human Rights, 2009. – 368 p.
Valeriya Lutkovska: ‘I will not say that I will resolve all problematic issues within the next year, but launching mechanisms for their resolution—this is truly realistic’ // http://www.ombudsman.gov.ua/index.php?option=com_content&view=article&id=2664:2013-04-29-14-42-44&catid=14:2010-12-07-14-44-26&Itemid=75