Report of the Human Rights Commissioner of the Verkhovna Rada of Ukraine: Presentation of the First Steps of the National Preventive Mechanism (Analysis of the Penitentiary Direction)

The report of the Human Rights Commissioner of the Verkhovna Rada of Ukraine (Commissioner, Ombudsman) has been published recently, becoming arguably the first report in history to deserve a positive assessment and recognition. Considerable attention is devoted to each category of rights and their associated problems, and practically all of them have been properly reflected and analysed.
This document differs significantly from similar previous ones in that it describes the first achievements of the National Preventive Mechanism (NPM), which is an extremely positive feature, as it signals serious progress in our state’s compliance with international obligations regarding the fight against torture and other cruel, inhuman, or degrading treatment or punishment. As can be seen from the remarks described following the first NPM visits to institutions of the State Penitentiary Service of Ukraine (SPSU), there are significant deficiencies in its activities, which leads to violations of the rights and freedoms of persons held in the respective institutions. In this, the report has noticeably surpassed its predecessors, as the rights of prisoners were mentioned only in passing in them.
We can assert that the direction of the Ombudsman’s office’s activity regarding the prevention of torture and other forms of ill-treatment is arguably the most important. It is known that the right to personal physical and mental integrity is fundamental, a fact repeatedly pointed out by the European Court of Human Rights. A significant portion of violations in this sphere concerns the SPSU specifically, and therefore the NPM must continuously develop to increase the potential of its visits for the effective detection of prohibited forms of treatment. This work aims to provide some recommendations for developing the effectiveness and professionalism of the NPM during visits to penitentiary institutions—which, however, does not exclude the possibility of their application in other places of detention—and to express my thoughts regarding the directions of the Ombudsman’s office’s activity in the realm of convicts’ and detainees’ rights. Incidentally, the Ombudsman herself appears to understand the breadth of the problem of prisoners’ rights, as evidenced unambiguously by the existence of a separate department for monitoring penitentiary institutions, which functions within the framework of the Department for the Implementation of the National Preventive Mechanism.
The results of the NPM’s activities and paths for its improvement require discussion, especially considering that the fight against torture and ill-treatment is among the Ombudsman’s priorities: ‘over the past year, about 100,000 people have appealed to the Human Rights Commissioner; an analysis and study of their appeals indicate the need for special response in such spheres as:
• Prevention of torture and ill-treatment;
• Observance of socio-economic and humanitarian rights;
• Observance of children’s rights, non-discrimination, and gender equality.’
To draw attention to the deficiencies in implementing this direction of activity, it is worth turning to regulatory sources, as it is precisely the non-compliance with legislatively enshrined requirements that, in our opinion, caused a certain ‘imbalance’ in both the activities of the NPM and the Ombudsman’s report regarding problems in the sphere of sentence execution and pre-trial detention.
In accordance with Article 3 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the objectives of the NPM are the prevention of torture and other cruel, inhuman, or degrading treatment or punishment. Article 19 of the Protocol indicates the powers granted to the NPM for achieving these objectives. Among them, special attention deserves Paragraph (b) of Article 19, which states the power ‘to make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of persons deprived of their liberty and to prevent torture and other cruel, inhuman, or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations.’
If one analyses the Report, it strikes the eye that the overwhelming majority of its provisions concern conditions of detention rather than the treatment of detainees and convicts. In other words, figuratively speaking, the discussion is ‘about walls’ rather than ‘about the people’ living within them. For example, among the typical violations identified in pre-trial detention centres: insufficiency of natural and artificial lighting in cells; absence of forced ventilation in cell-type and other premises where persons are held; excessive humidity and fungal infestation of the walls in some cells; non-compliance with the utility area standard of 2.5 sq. m per prisoner in pre-trial detention centres and 4 sq. m per person in correctional colonies; building premises of pre-trial detention centres and sleeping quarters of correctional institutions require ongoing and capital repairs; laundry equipment has exhausted its service life and requires replacement. Deficiencies inherent to correctional colonies: placement of cell-type premises and disciplinary isolation wards in semi-basement rooms unsuitable for prolonged detention of convicts; disciplinary premises (PKT, DIZO) require repair work. They do not have sufficient natural lighting and access to fresh air; medical unit premises require ongoing repairs; heating systems are in a worn-out state; sleeping quarters for convicts require repair; refrigerators are not installed in the premises of social-psychological service departments, which makes it impossible to store transferred food products for a long time during the summer season; no provision is made for convicts to wash their hands directly in the dining hall, etc.
This resulted in the fact that of the 13 recommendations provided to the SPSU, only 3 concern matters other than premises and their equipment (regarding the practice of denying women convicts conditional and premature release, the proper provision of medical services to prisoners, and taking measures to fill vacant positions for medical professionals). The other ten recommendations are purely ‘about walls’ and concern detention space, sanitary-hygienic status, ventilation, the equipment of exercise yards, the laundry of prisoners’ personal items, toilet flushing, the insufficient number of washbasins, electrical sockets, and the installation of shelving for personal items.
We are in no way diminishing the importance and urgency of these remarks; on the contrary, we emphasise the necessity of their swiftest practical implementation. At the same time, one cannot help but notice that focusing activity on the quality of premises and equipment led to problems being left on the sidelines which are no less significant in terms of weight, and perhaps even greater in the perception of convicts and detainees. Moreover, their scope should have been an inseparable subject of investigation during the visits of such a monitoring body as the NPM.
If, for example, one turns to one of the most authoritative publications of the Swiss Association for the Prevention of Torture with recommendations for conducting visits to places of detention, taking into account the specifics of the mentioned Optional Protocol, we will see that the newly created Ukrainian NPM investigates penitentiary institutions quite superficially and leaves out very serious aspects of their activities. For instance, the publication contains a section defining aspects to be investigated during visits to places of detention: use of special means (handcuffs, etc.), use of force, informing prisoners, disciplinary procedures, complaint-filing procedures, contact with family and friends, contact with the outside world, education, outdoor physical exercises, leisure and cultural activity, religion, work, access to medical assistance, specifics of medical service for women and children, specifics of medical service for prisoners with mental illnesses, staff training, etc. All these aspects are divided into 6 sections: treatment, safeguards, material conditions, regime and activities, medical care, and staff. As can be seen, the block regarding material conditions is only one of six subject to investigation during visits.
To confirm this position, one can also turn to examples of NPM activities in the United Kingdom in 2010–2011. More than half of the visits were unannounced. They concerned checking institutions for the implementation of so-called ‘Expectations’—human rights standards based on 4 aspects of proper prison activity: safety, respect, purposeful activity, and rehabilitation. Among the aspects investigated were: the problem of drug addiction treatment in prisons (whereas in Ukraine, incidentally, the inaccessibility of opioid substitution therapy programmes for drug-dependent persons in penitentiary institutions remains a serious problem to this day), relationships between staff and convicts, treatment of the disabled and elderly convicts, quality and quantity of purposeful activity, education, contacts with family, involvement of families in the employment of convicts after release, medical provision, the distance of detention for juvenile convicts from their place of residence (in Ukraine, this is a problem for all convicts), specifics of treatment of juveniles, conducting searches, etc.
Furthermore, the extremely positive practice of conducting thematic visits deserves attention and imitation by the Ukrainian NPM. For example, the British NPM specially investigated such topics as: research on medical provision in prisons, planning of education for children and youth, work with offenders (together with the probation service), and group activity among children and youth. In addition, specialised reports were published, such as ‘Women in Prisons’ and ‘Muslims in Prisons’. Interestingly, the NPM pays attention to Independent Monitoring Boards (a prototype of Ukrainian supervisory commissions, also created at each colony) as bodies with which they cooperate. In our country, unfortunately, there is no talk of such cooperation yet.
The question of legislation stands apart. The report proposes only 4 amendments to the Criminal-Executive Code of Ukraine and 3 to the Law of Ukraine ‘On Pre-trial Detention,’ while a mass of other remarks exists regarding legislation regulating detention in SPSU institutions. Thus, many of the problems were expressed back in the 2009 Kharkiv Human Rights Protection Group publication, in the annual reports of the Ukrainian Helsinki Human Rights Union, and in the annual specialised reports of the ‘Donetsk Memorial’ human rights organisation. The fact that the vast majority of problems described in them have existed for a long time does not mean that they should be ignored by the Commissioner. Especially considering the statements that the Ombudsman’s Office gets involved in cases regardless of whether they have gained media publicity or not, and the fact that the possibility of providing proposals and remarks concerning current legislation or draft bills is a power of the NPM (Article 19 of the Optional Protocol).
Incidentally, the same NPM remarks regarding exercise yards need to be taken into account in regulatory documents, because, for example, weather canopies are not provided for in departmental legislation as something necessary to install. Just as in 2009 and 2011, the Committee for the Prevention of Torture drew attention to the impermissibility of bars on the windows of convict cells in disciplinary isolation wards—which was done in individual institutions visited by the Committee—this did not find its logical continuation in others due to the requirement to install such bars in the Internal Rules of Penal Institutions. Unfortunately, the Committee’s recommendations remain largely unfulfilled to this day. It seems that their implementation, as well as following the standards for conducting monitoring by this body, which can be learned even by reading reports on the results of visits to Ukraine, should become one of the NPM’s priorities.
The power of the NPM to have access to any information concerning the treatment of these detainees and convicts, as well as the conditions of their detention (Article 20 of the Optional Protocol), is also extremely urgent, as it can be used for access to the departmental legislation of the former State Department for the Execution of Sentences, namely to documents marked ‘for official use’ (DSK). We know that many of the provisions currently contained in them are in contradiction with the laws of Ukraine and the Constitution of Ukraine. However, only a body that can acquaint itself with them without hindrance will be able to react to this, as the legislation establishes liability for citizens for disseminating ‘DSK’ information.
In view of these considerations, 2013 may become a real test for the Ombudsman and the NPM in particular. It will be necessary to check the fulfilment of their own recommendations for 2012, which, it seems, will be largely unfulfilled, with the SPSU citing a lack of funds. It will be necessary to master this year’s turbulent norm-making by the Ministry of Justice together with the SPSU in the penitentiary sphere, which led to the birth of the odious Internal Rules for Pre-trial Detention Centres, which run counter to human rights standards and, undoubtedly, require cancellation. The adoption of new Internal Rules for Penal Institutions is on the horizon, which, as can already be guessed from the Ministry of Justice’s existing draft, will preserve all the negative norms of the past from a human rights perspective and include updates that are rather aimed only at facilitating the work of SPSU personnel, and not at improving the state of human rights observance for convicts; and it will be necessary to evaluate the recently proposed amendments to the Criminal-Executive Code of Ukraine, which have already been adopted in the first reading, which specialists have assessed negatively.
A resolution of the Cabinet of Ministers of Ukraine has been adopted, ‘On Approval of the State Targeted Programme for the Reform of the State Criminal-Executive Service for 2013–2017,’ in which 179.57 million UAH was allocated for the improvement of the healthcare system for convicts and persons held in custody and for increasing the quality of medical assistance, while 1,107.01 million UAH was allocated for the modernisation of engineering-technical security and supervision means, the introduction of modern technologies to create a multi-level centralised security and video monitoring system, and automated information and telecommunication systems for the SPS, and 356.75 million UAH for the modernisation of enterprises—which, obviously, testifies to the priorities of criminal-executive policy. Attracting a third of the funds for the implementation of this programme is planned from sources other than the state budget, which will mean the possibility of confirming fears that the invested funds will have to be worked off by convicts under conditions of maximally cheap labour exploitation at the very same enterprises that are planned to be modernised.
All this means that the level of urgency regarding the sphere of observance of convicts’ and detainees’ rights not only remains high but is starting to go off the scale this year. Therefore, an increase in the level of professionalism, attentiveness, and effectiveness of the NPM is extremely necessary, as well as for the ‘penitentiary direction’ of the Ombudsman’s office as a whole. This requires constant involvement of scholars and human rights activists specialising in prisoner rights standards in this activity, taking into account their opinions and proper reaction to every well-founded remark regarding the observance of these rights so that no known violation remains ignored.

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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