Implementation of the 2014 Report Recommendations

Implementation of the recommendations of the “Donetsk Memorial” human rights organisation report by the Penitentiary Service of Ukraine

“Observance of Prisoners’ Rights in Ukraine 2014” (fragment of the 2015 Report)

This section of the 2015 Report is highly interesting, as it allows one to evaluate both the quality and relevance of the NGO’s recommendations and the actual activity of the agency in addressing issues identified by the organisation as important.

From the first annual “Observance of Prisoners’ Rights in Ukraine” report, the authors have concluded them with a series of recommendations. Usually, the penitentiary service’s reaction to these recommendations (with the exception of the very first report) was either sluggish and vague, or entirely absent.

In response to the traditional request from “Donetsk Memorial” to the penitentiary service to provide its vision on the issues reflected in the recommendations of the 2014 Report, the agency sent a detailed reply this time, stating that “the SpsU of Ukraine has carefully studied the annual report ‘Observance of Prisoners’ Rights in Ukraine 2014’ by the ‘Donetsk Memorial’ human rights organisation, as well as the recommendations set forth therein. The SpsU of Ukraine will take these recommendations into account during its activities. We are providing information on the issues mentioned in the recommendations.”

We are extremely grateful for the provided recommendations and explanations, and for the effort required to prepare the response.

The information provided by the penitentiary service not only allows for an understanding of what has been and is being done by the agency regarding the issues covered by the recommendations. The nature of the explanations clearly demonstrates the angle from which the agency views the identified problems and how it resolves them.

Overall, the level of implementation of the 2014 Report’s recommendations is noticeably higher than in previous years.

Undoubtedly, certain work is being carried out by the agency on many issues, and in some areas, quite a lot is being done. At the same time, there are problems that are important, in our view, to which too little attention is paid. A number of problems discussed in the recommendations of the “Donetsk Memorial” report were not reflected at all in the agency’s response. It is quite logical to assume that nothing is actually being done within the agency to resolve many of these problems.

It is important to emphasise that upon reviewing the responses of the penitentiary service, an important aspect of their construction becomes obvious, which does not allow for an assessment of the actual results in resolving certain problems. The discussion is either about reporting on future activities or about a list of organisational measures—meetings, discussions, signed agreements, etc.

We hope that the “Donetsk Memorial” comments on the answers and explanations provided by the agency will be useful and help the agency in preparing similar responses in the future.

The answers provided by the agency this year contain information regarding 24 out of the 40 recommendations presented in the “Donetsk Memorial” report. These 24 recommendations are grouped thematically into blocks in accordance with the topics provided in the SpsU letter. Each block consists of three fragments: “Donetsk Memorial” recommendations, the actual text of the penitentiary service’s response, and “Donetsk Memorial” comments.

At the end of the section, 16 “Donetsk Memorial” recommendations are listed for which there is no information in the SpsU letter. This circumstance can very likely be interpreted as the penitentiary service having nothing meaningful or positive to report regarding their implementation.

* * *

Regarding the provision of control over the implementation of the findings and recommendations of inspection bodies of international organisations. The State Penitentiary Service of Ukraine is a proponent of improving existing and developing new effective instruments for protecting the rights of citizens who, by the state’s decision, are deprived of liberty and are held in penal institutions and pre-trial detention centres.

The SpsU of Ukraine is taking measures to concentrate state and non-state sector initiatives in the field of strengthening guarantees for the protection of citizens’ rights into unified, permanent processes that would effectively influence the improvement of the work of bodies and institutions belonging to its sphere of management.

In accordance with Ukraine’s obligations to the United Nations, the implementation of recommendations from the UN Subcommittee on Prevention of Torture (the visit took place in May 2011, during which ten penal institutions and pre-trial detention centres were visited in the Kyiv, Lviv, and Donetsk regions), the recommendations of the Working Group on Arbitrary Detention of the UN Human Rights Council (the visit took place in October–November 2008), and the Plan for the implementation of recommendations on improving the situation in the field of ensuring human rights, which are indicated in the conclusions and recommendations of the Report of the Working Group on the Universal Periodic Review within the framework of the UN Human Rights Council, is being ensured.

In addition, in November 2014, the Sixth Report of the Government of Ukraine on the implementation of the provisions of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was defended during a working meeting of the UN Committee against Torture in Geneva.

In accordance with Ukraine’s obligations to the Council of Europe, the observance of the rights and freedoms of persons held in penal institutions and pre-trial detention centres is ensured.

To this end, the recommendations and observations of the CPT are being implemented (CPT inspection visits: 08–24.02.1998; 14–23.07.1999; 10–26.09.2000; 24.11–06.12.2002; 09–21.10.2005; 05–10.12.2007; 09–21.09.2009; 29.11–06.12.2011; 01–10.12.2012; 09–21.10.2013; 18–24.02.2014; 09–16.09.2014), which in Ukraine have actually been elevated to the rank of mandatory for implementation. During the visits from 1998 to 2014, some institutions of the SpsU of Ukraine were visited in the Autonomous Republic of Crimea, as well as the Vinnytsia, Dnipropetrovsk, Donetsk, Zhytomyr, Kyiv, Luhansk, Kharkiv, Kherson, Odesa, and Poltava regions.

An achievement for Ukraine is that in March 2015, the procedure provided for by paragraph 2 of Article 10 of the European Convention for the Prevention of Torture (unilateral publication of a statement on the lack of cooperation with the CPT in light of the implementation of its recommendations), which had been initiated by the CPT in 2011, was terminated. This was a consequence of the intimidation of convicts and their moral and physical pressure for contacts with CPT representatives in the Oleksiivska (No. 25) and Temnivska (No. 100) correctional colonies of the SpsU of Ukraine administration in the Kharkiv region.

An appropriate action plan is being implemented for the realisation of the recommendations of the Commissioner for Human Rights of the Council of Europe, who visited a number of institutions belonging to the sphere of management of the SpsU of Ukraine in February 2014 (reference: previous visits were on 10–17 December 2006 and 19–26 November 2011).

In all cases, the subjects of the inspection institutions of the UN and the Council of Europe, without the interference of the leadership of the penitentiary service of Ukraine, independently determined the list of institutions for visits, which is provided for by international conventions and protocols thereto.

Comment by DM

The response of the State Penitentiary Service of Ukraine states that the agency “is a proponent of improving existing and developing new effective instruments for protecting the rights of convicts and is taking measures to strengthen the guarantees of such protection.” To confirm this, a considerable list of international institutions is provided, whose recommendations and/or obligations to which the agency supposedly fulfils.

There is no doubt that the agency’s leadership remembers this entire list of institutions. There is even certainty that some of what is listed is being implemented.

However, there are no results or tangible positive changes. The reason likely lies in the level of implementation of the mentioned recommendations and obligations. This very level of implementation (which, by the way, can be considered as a level of conscientiousness in implementation) is extremely low, at times almost close to zero. This level, combined with the extremely widespread imitation of implementation, leads to results that are more than modest.

Yes, the agency’s response to “Donetsk Memorial” states that “in November 2014, during a working meeting of the UN Committee against Torture in Geneva, the Sixth Report of the Government of Ukraine on the implementation of the provisions of the UN Convention against Torture was defended.” Conversely, the constatation of the defence of this report says nothing about the level of Ukraine’s implementation of the Convention’s provisions. At the same time, during this defence, the members of the Committee made a great many very serious remarks to the representatives of the government of Ukraine.

In its response to “Donetsk Memorial,” the agency also assures that “in accordance with Ukraine’s obligations to the Council of Europe, the observance of the rights and freedoms of persons held in penal institutions and pre-trial detention centres is ensured. To this end, the recommendations and observations of the CPT are being implemented, which in Ukraine have actually been elevated to the rank of mandatory for implementation.”

One can confidently say about this statement that it largely contradicts reality, i.e., it is untrue. This is confirmed by the materials of the Reports of the Committee for the Prevention of Torture, for example, on the issue of the use of handcuffs on life-sentenced persons:

“In 2005, the Committee recommended immediately ending the practice of the systematic use of handcuffs on men when leaving a cell. In 2009, the Committee noted that the security measures applied to life-sentenced persons remain excessive. As in the past, life-sentenced prisoners were systematically handcuffed when being taken out of their cells. In the visited institutions, when convicts were taken out of their cells, dogs were kept in the corridors without muzzles.

The Committee insists that measures must be taken to ensure that:

- the use of handcuffs on life-sentenced prisoners outside of cells is always based on an individual risk assessment;

- the dangerous and intimidating practices of using dogs in detention zones when life-sentenced prisoners are taken out of their cells cease without delay.”

In response to these constant and persistent recommendations, the Government of Ukraine reports:

“For the purpose of ensuring appropriate safety requirements for personnel, persons sentenced to life imprisonment, when being taken out of their cells, keep their hands behind their backs and are accompanied by two junior inspectors of the supervision and safety department and a cynologist with a service dog. At the same time, a special tool ‘BR’ (hand handcuffs) is applied to the convict in accordance with the requirements of current legislation. This procedure is provided for by the orders of the State Department dated 22.10.2004 No. 205dsp, which approved the Instruction on the organisation of supervision over convicts serving sentences in penal institutions, and dated 25.12.2003 No. 275, which approved the Rules of Internal Order of penal institutions. These departmental regulatory legal acts have passed registration with the Ministry of Justice of Ukraine regarding their compliance with the observance of the rights of citizens who have been deprived of liberty in accordance with court decisions.”

That is, for Ukraine, it is sufficient that there is an SpsU order, a certain Instruction, and therefore there is no need to heed the requirements of the Committee. Such is the “mandatory nature” of implementing the Committee’s recommendations.

Another example of “mandatory” implementation is the issue regarding the contacts of life-sentenced persons with visitors.

“The Committee recommended in 2000 to immediately take measures to ensure that life-sentenced prisoners are not prohibited from receiving visits. In 2005, the Committee recommended... significantly expanding the right to visits.

In 2009, the Committee argued its position: ‘Special efforts should be made to prevent the breakdown of family ties of prisoners serving life imprisonment. Ukrainian legislation continues to impose strict restrictions on the right of visits for those sentenced to life imprisonment. Such an approach runs counter to the generally accepted principle that criminals, regardless of the crime for which they were convicted, are sent to prison as a punishment, and not to receive punishment. Visits to life-sentenced prisoners take place in secure booths with a glass partition, which does not allow for physical contact between prisoners and their visitors.

In 2009, the Committee called on the Ukrainian authorities to significantly increase the number of possible visits for life-sentenced prisoners. As a rule, visits should take place in open conditions (for example, at a table); visits through a partition should be the exception.’”

In response to these remarks of the Committee, which have been sounding for decades, the Government notes: Article 151 of the Penal Code of Ukraine provides for convicts sentenced to life imprisonment to be granted short-term visits once every three months. Rooms for holding short-term visits are equipped in accordance with Annex 17 to the Rules of Internal Order of penal institutions. Subscriber intercom devices are installed in these rooms.

That is, we have Art. 151 of the Penal Code, and therefore “the breakdown of family ties” does not worry Ukraine. And the Committee’s remark that “such an approach runs counter to the generally accepted principle that criminals are sent to prison as a punishment, and not to receive punishment” – also does not worry Ukraine.

It is telling that the representatives of Ukraine, referring to the norms of existing laws, do not wish to see that the Committee is recommending to the Ukrainian authorities precisely to review legislation and practice, and not to explain why it is done this way. The demonstration of such a dismissive attitude towards international institutions is shocking. This amateurish arrogance permeates the entire Government report to the Committee.

Five years have passed since the compilation of this shameful response for the country, but the actual attitude towards the recommendations and remarks of the Committee that existed then remains unchanged today. This is frankly demonstrated in his interview in February 2016 by the head of the penitentiary service, V. M. Palahniuk. Here is his unequivocal position regarding torture in PC-100:

“There were also complaints from the European Committee for the Prevention of Torture, as if there (in PC-100 – ed.) there were abuse and torture of convicts. No, they are just made to clean up after themselves there; no one has ‘lackeys’ there; they are guided by the law and internal regulations, not by thieves’ laws.” That is, there was no torture, the head of the SpsU believes.

Is the Head of the agency right? Here is a fragment from the Report of this Committee regarding what was seen by the delegation in PC-100.

“In the Temnivska Men’s Colony No. 100, the delegation received a number of complaints about the brutal beating of prisoners. Such treatment took place in cell 01 and followed the following scenario: the prisoner’s hands are cuffed behind his back, prison staff put him face down on the floor, pull down his trousers, and beat him on the buttocks with a long wooden truncheon, usually accompanying the beating with verbal abuse. In one case, the prisoner also complained that he was beaten on the soles of his feet, and a medical assistant splashed cold water in his face; in another case, the prisoner claimed that prison staff urinated on his bleeding bare buttocks.

When examined by the delegation’s physician several weeks later, some of these prisoners had wounds confirming the complaints. After such a long time, many injuries caused by beatings of this type should have completely healed and left no traces. The fact that the wounds were still visible, their size, tissue loss, and duration of healing suggest that the initial injuries were serious, with skin tearing, bleeding, swelling, and haematomas.

As shown by medical reports compiled by the health service on the facts of the use of ‘special means’ by staff of the Disciplinary Isolation Ward/Cell-type Room (DIZO/PKT), the use of force was recorded in ten cases between 19 August and 3 September. The medical reports did not mention any statements by the prisoners or the circumstances under which these injuries could have been sustained. Faced with these facts, the chief physician of the health service and the medical assistant were unable to provide plausible explanations for the almost identical injuries, especially those observed on the same day.

The CPT delegation requested a thorough and urgent investigation into the complaints of ill-treatment in cell 01 of the DIZO/PKT unit. The delegation also demanded the immediate cessation of the use of this cell, which is lined with black fabric, soundproof, without windows or ventilation, and equipped only with a ceiling source of artificial light. There is no place for such a cell in a modern penitentiary institution.

The response of officials regarding the investigation requested by the delegation is unacceptable—it was simply stated that the investigation concluded that the use of ‘special means’ complied with Ukrainian legislation and European Prison Rules.

There are grounds to doubt the methods of conducting this investigation, as only the reports of the health service of Colony No. 100 cause, to put it mildly, concern. The CPT emphasises that officials should provide plausible explanations for the causes of injuries sustained by prisoners; such explanations have not been provided yet.”

Such was and is today the true attitude of the agency’s leadership towards the remarks of the Committee for the Prevention of Torture.

Therefore, one should treat assurances from the agency such as: “An appropriate action plan for the realisation of the recommendations of the Commissioner for Human Rights of the Council of Europe is being implemented” with great caution.

It is obvious that the recommendation of the “Donetsk Memorial” report for the agency to take a serious and constructive approach to the maximum implementation of the recommendations of the European Committee for the Prevention of Torture is, in practice, largely not being implemented.

The practical activity of penal institutions shows that the provisions of the European Prison Rules are still very often not being observed. At the same time, the attitude towards the need to maximally observe the recommendations of international documents is almost not changing: to observe them in words and ignore them in practical activity.

* * *

Regarding the participation of the SpsU in national and interdepartmental mechanisms for countering torture. Assistance in improving the functioning of national and interdepartmental mechanisms for countering torture to strengthen guarantees of protecting citizens’ rights has been ensured.

On 19 June 2014, a section on this issue was created on the website of the SpsU of Ukraine:

http://www.kvs.gov.ua/peniten/control/main/uk/publish/category/643789;
http://www.kvs.gov.ua/peniten/control/main/uk/publish/category/643790.

Assistance is being provided to the work of the Ombudsman’s representatives during visits to penal institutions and pre-trial detention centres. This work is carried out on the basis of the SpsU of Ukraine order dated 30.11.2012 No. 810, in accordance with which the leadership of territorial bodies of the SpsU of Ukraine is obliged to ensure necessary assistance to the personnel of the Department for the Implementation of the National Preventive Mechanism during their monitoring visits to penal institutions and pre-trial detention centres.

(Reference: On 2 October 2012, the powers of the Ukrainian Parliament Commissioner for Human Rights were expanded by law. In accordance with this, unobstructed access of the personnel of the Department for the Implementation of the National Preventive Mechanism, acting within the Secretariat of the Ombudsman, to institutions belonging to the sphere of management of the SpsU of Ukraine is provided for).

On 18 April 2014, by the order of the Ministry of Justice of Ukraine No. 670/5, a Commission on State Policy in the Sphere of Execution of Criminal Punishments was formed (meetings of the Commission took place on 2 June and 4 September 2014), within the framework of which 5 mobile groups operate to carry out inspections of the activities of penitentiary institutions (the activities of the Kyiv, Odesa, and Kharkiv pre-trial detention centres, the Zakarpattia Penal Institution (No. 9), the Boryspil (No. 119), Stryzhavka (No. 81), Polytsia (No. 76), and Oleksiivska (No. 25) correctional colonies in the Kyiv, Vinnytsia, Rivne, and Kharkiv regions, and the Melitopol educational colony in the Zaporizhzhia region have already been inspected). The Head of the Department of International Activity and Interaction with Media acts as the secretary of this Commission.

During the Commission’s work from April to the end of December 2014, inspections of nine penal institutions and pre-trial detention centres were carried out; in seven cases, the mobile groups for carrying out such inspections were headed by representatives of the SpsU of Ukraine apparatus.

During working contacts with representatives of the CPT (10 September 2014) and Council of Europe experts to discuss problematic issues of applying remedies and compensatory mechanisms in the execution of decisions of the European Court of Human Rights (15 December 2014), the European side raised questions regarding the specifics of the activities of the working (mobile) groups of the Commission in terms of their organisational and legal identity to the national preventive mechanism already operating in Ukraine regarding independence from the state sector.

Since 16 May 2014, by the decision of the SpsU of Ukraine board, the practice of approving candidates for leadership positions in bodies and institutions belonging to the sphere of management of the SpsU of Ukraine, and considering materials for their appointment or promotion based on the results of personnel commissions, taking into account the remarks set forth in CPT reports, has been introduced.

The participation of the SpsU of Ukraine in coordinating the text of the National Strategy in the sphere of human rights, work on the preparation of which began under the auspices of the Ministry of Justice of Ukraine in November 2014, has been ensured (reference: it is planned that the draft of the mentioned document will be approved by the Verkhovna Rada of Ukraine).

Regarding the assistance of the SpsU of Ukraine to the activities of UN, OSCE, and ICRC monitoring missions in connection with events in the occupied territories. Taking into account the complex political situation in Ukraine regarding issues of the ARC, Donetsk, and Luhansk regions, assistance within the competence of the SpsU of Ukraine has been ensured for the work in Ukraine of representatives of the UN Human Rights short-term mission of the Office of the United Nations High Commissioner for Human Rights, created at the request of the Government of Ukraine, and the OSCE Special Monitoring Mission based on the Memorandum of Understanding dated 14 April 2014.

Assistance was also organised for the work of the delegation of the International Committee of the Red Cross (hereinafter - ICRC) for Eastern Europe and Central Asia; an appropriate organisational and administrative act of the SpsU of Ukraine was issued on 10 September 2014 on this issue.

Comment by DM

Traditionally, the SpsU, as a reaction to the recommendations, informs about organisational measures: “On 19 June 2014, a section on this issue was created on the SpsU website,” providing links to two pages. At the same time, on one of the indicated pages, the latest messages are dated 16.10.2014 and 18.11.2014, and on the other – 09.09.2014, 27.11.2014, and 28.11.2014. Thus, over the next 15 months – not a single publication. That is, they created a section in June, and half a year later, they forgot about it.

The agency’s response states that “assistance is provided to the work of the Ombudsman’s representatives,” but not a word is reported about the effectiveness of this assistance.

From the fact that “a Commission was created” and “the activity of nine institutions was inspected,” one cannot in any way learn what positive results this creation has yielded for the convicts.

It is difficult to consider as information related to countering torture at all the fact that “the European side raised the question of the specifics of the activities of the working (mobile) groups of the Commission.” Without any information about the results of this “raising” of the issue.

One could welcome the report that “by the decision of the SpsU board, the practice of approving candidates for leadership positions in bodies and institutions belonging to the sphere of management of the SpsU has been introduced.”

However, there is no information about how many leadership staff members of bodies and institutions were approved “taking into account the remarks set forth in CPT reports,” or if there was at least one candidate who was not approved for this reason? Where can one find the criteria that are taken into account during the consideration “taking into account the remarks set forth in CPT reports”? Nothing is reported.

It is not known in what way it can be considered as information related to countering torture at all that “the participation of the SpsU of Ukraine in coordinating the text of the National Strategy in the sphere of human rights has been ensured.”

Summing up, it must be admitted that any meaningful and measurable information about a “radical increase in requirements for personnel regarding awareness of human rights and the introduction of tests for them upon appointment on knowledge of documents in the field of human rights” has not been provided by the agency in its response.

The agency bypassed the “Donetsk Memorial” proposals on not allowing the violation of the rights of institution personnel and on the prohibition of overtime work by personnel with silence. Nothing was also reported by the agency about public reminders to all penal institution personnel about the inadmissibility of cruel treatment of prisoners, about the inadmissibility of obstructing the sending of complaints, and about the mandatory prosecution of penal institution personnel for violating these requirements.

The agency did not report anything in its response about the implementation of monitoring of prisoner conditions, including the preparation of alternative reports, reports on problems, or by areas of institutional activity.

* * *

Regarding the submission of complaints by convicts and their consideration. Recently, special attention has been paid to improving the mechanisms for submitting complaints by potential victims of ill-treatment and responding appropriately to them. The SpsU of Ukraine has concluded that this organisational and legal instrument must meet the absolute principles of independence and impartiality, promptness, a sufficient degree of involvement of the victim, and openness to public control.

To this end, until December 2013, the SpsU of Ukraine was actively involved in the implementation of international projects on preventive mechanisms under the auspices of the Council of Europe.

In particular, within the framework of the joint EU and CoE programme “Strengthening the fight against ill-treatment and impunity” (Council of Europe Action Plan for Ukraine for 2011–2014), on 13 December 2013, a discussion of the recommendations regarding the assessment of the effectiveness of the mechanism for submitting complaints about ill-treatment in the penitentiary system of Ukraine, provided by a Council of Europe consultant involved in this work, was held.

The mentioned recommendations underwent public discussion from 16 May to 16 June 2014 and were approved on 12 February 2015 by the Ministry of Justice of Ukraine order No. 178/5 “On Approval of Methodological Recommendations Regarding Improving the Investigation of Allegations of Ill-treatment in Penal Institutions and Pre-trial Detention Centres Belonging to the Sphere of Management of the State Penitentiary Service of Ukraine.”

Further work on developing organisational and legal instruments for their implementation will be continued within the framework of the three-year project “Further Support for Penitentiary Reform in Ukraine,” with the coordination of this process by the Criminal Law Cooperation Unit of the Directorate General of Human Rights and Rule of Law of the Council of Europe. The practical development of the appropriate organisational and legal instrument will be carried out on the basis of the Stryzhavka correctional colony (No. 81) in the Vinnytsia region.

Also, in continuation of the topic mentioned above, a dialogue is underway under the auspices of the Council of Europe regarding implementation into national legislation and introduction into practice of a new institute of “preventive and compensatory” remedies against inadequate conditions of detention in penitentiary institutions. On 15 December 2014 and 17 June 2015, working meetings were held with Council of Europe experts to discuss Council of Europe standards in this area and the experience of Italy and France.

This is due to the fact that an additional indicator for redistributing the accents of the SpsU of Ukraine’s activity (what more attention should be paid to) is the practice of the European Court of Human Rights, which is in line with the shortcomings of the CPT. The analysis conducted over the last 10 years indicates that the most systemic violations by the object of the complaint are: inadequate conditions of detention (29 complainants), inadequate medical care (17 complainants), and ineffective investigation of complaints about ill-treatment (7 complainants).

The issue of improving the mechanism for investigating complaints about ill-treatment is under the control of the Government Commissioner for the European Court of Human Rights.

Comment by DM

The issue of creating a mechanism for submitting complaints by convicts is extremely painful for the agency. This is confirmed by the fact that the agency strangely cited quite a lot of information about various measures taken on the topic of submitting complaints, except for steps towards the immediate creation of a mechanism for submitting complaints, namely:

The agency held a discussion of recommendations regarding the assessment of the effectiveness of the mechanism for submitting complaints.

The recommendations underwent public discussion and were approved by the order of the Ministry of Justice of Ukraine.

Work on developing organisational and legal instruments for their implementation will be continued in another project.

It is also planned by the agency to have “practical development of the appropriate organisational and legal instrument”; it is noted that “a dialogue is underway regarding the implementation... of remedies, working meetings were held with Council of Europe experts to discuss Council of Europe standards in this area, the experience of Italy and France.”

The agency notes that an additional indicator for redistributing the accents of the SpsU of Ukraine’s activity (what more attention should be paid to) is the practice of the European Court of Human Rights.

The issue of improving the mechanism for investigating complaints about ill-treatment is under control.

Everything listed looks like vigorous activity, but only in the approaches to creating a mechanism for submitting complaints. Not a single word from the SpsU is cited about real steps for ending the practice existing in the agency of punishing complainants for attempts to challenge the actions of the administration of institutions. Nothing is reported about any reaction at all from the agency’s leadership to attempts by institution employees to obstruct the sending of complaints by convicts; there is no information about the prosecution of employees for non-reaction to complaints and for the imitation of their resolution.

The “Donetsk Memorial” report recommendation remained without any reaction from the agency: upon the request of convicts, provide them with written responses to their appeals and complaints. For such a step, no studies, discussions, or developments are needed, just as learning the experience of Italy and France is not needed. This is a requirement of the law of Ukraine “On Citizens’ Appeals,” and it is enough to simply comply with it. Nothing prevents the agency from adopting a norm about this in its regulatory documents. However, the penitentiary service does not do these simple things. That is, the agency does anything except the very elementary things necessary for the unobstructed submission of complaints by convicts without the fear of being punished for such actions. This would not be possible if the agency’s reaction to “Donetsk Memorial” recommendations were completely different, if the agency really wished to improve the situation. It is obvious that it does not wish to improve it.

It remains to state that, in fact, the recommendations of the “Donetsk Memorial” Report have not been implemented, despite a number of formally taken measures.

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Regarding healthcare and medical-sanitary support. In the execution of the instruction of the Prime Minister of Ukraine dated 16.06.2015 No. 21358/1/1-15 regarding paragraph 1 of Article 3 of the Decree of the President of Ukraine dated 20.05.2015 No. 276/2015 on the execution of the Action Plan for the implementation of the provisions of the Strategy for Reforming the Judiciary, Legal Proceedings, and Related Legal Institutions for 2015–2020, the Department of Healthcare and Medical-Sanitary Support of the SpsU of Ukraine provided appropriate proposals regarding the reform of penitentiary medicine. The proposals were sent for coordination to the Ministry of Justice of Ukraine.

The organisation of providing convicts with technical and other means, including rehabilitation means, is identical to national requirements and is carried out in accordance with the Procedure for organising the provision of medical assistance to convicts deprived of liberty, approved by the joint order of the Ministry of Justice of Ukraine and the Ministry of Health of Ukraine dated 15.08.2014 No. 1348/5/572.

We also inform you that since 2013, a UN project “Increasing the effectiveness of the measures of law enforcement agencies, the penitentiary system, and the narcological service in response to the HIV/AIDS epidemic,” designed until 2016, has been implemented in two components:

1) improving the qualifications of personnel in the field of HIV/AIDS prevention;

2) healthcare among vulnerable categories of convicts and persons held under guard.

The project’s location extends to the Bila Tserkva correctional colony (No. 35), the Kachanivska correctional colony (No. 54), the Kremenchuk educational colony, and the Kyiv pre-trial detention centre.

In 2015, it is planned to create a resource centre on the basis of the Chernihiv Juridical College (premises have been allocated for equipment with a server and office equipment) on issues of prevention and countering the HIV/AIDS epidemic and work with drug-addicted convicts.

Participation is being carried out in project measures funded by the Global Fund to Fight AIDS, Tuberculosis and Malaria.

In July 2014, a subgrant agreement was concluded with the State Institution “Ukrainian Centre for Social Disease Control of the Ministry of Health of Ukraine” for the implementation of the project “Building a viable system of comprehensive services for the prevention and treatment of HIV/AIDS in bodies and institutions belonging to the sphere of management of the SpsU of Ukraine” in the amount of almost 3.63 million UAH (reference: the agreement was in effect until February 2015; within the framework of this format of cooperation, a new agreement on the prevention and treatment of HIV infection and tuberculosis was concluded for the period from 2015 to 2017 for 3.7 million UAH).

Earlier, since 2012, the SpsU of Ukraine participated in the 10th round of the project for the “AIDS” component in cooperation with the All-Ukrainian Network of People Living with HIV/AIDS. On 21 March 2012, a Cooperation Agreement was signed with the aforementioned public organisation and the SpsU of Ukraine regarding countering the spread of HIV/AIDS with the financial support of the Global Fund to Fight AIDS, Tuberculosis and Malaria (in 2013, 10 million 764.3 thousand UAH was used).

On 26 March 2015, a new Memorandum of Understanding was signed with the international non-governmental organisation “Médecins Sans Frontières” (Doctors Without Borders) for the relocation of the five-year project on tuberculosis counteraction, started in 2011, from the Zhdanivska correctional colony in the Donetsk region (No. 3) to the Dnipropetrovsk correctional colony (No. 89) and other institutions of this region – the project cost is almost 1 million Euros.

The uniqueness of the project lies in the introduction of WHO schemes for tuberculosis treatment and the provision of a full cycle of treatment – from the moment of diagnosis to complete recovery, and accompanying the sick person during their serving of the sentence and after their release.

In the period from 2012 to 2013, assistance was provided to the work of 29 foreign doctors.

Comment by DM

The SpsU notes in its comments regarding healthcare and medical-sanitary support that it has “sent for coordination to the Ministry of Justice of Ukraine proposals regarding the reform of penitentiary medicine.”

At the same time, the impression is created that the fate of these proposals is unknown. It is difficult to imagine in what way the mere sending of proposals can influence the state of providing medical services to convicts.

Further, the agency notes:

“The organisation of providing convicts with technical and other means... is carried out in accordance with the Procedure for organising the provision of medical assistance to convicts deprived of liberty.”

It is impossible to understand from such a statement in what way the organisation of provision with means influences the situation with the provision of medical services to convicts.

Further. The agency claims that a project is being implemented regarding:

1) improving the qualifications of personnel in the field of HIV/AIDS prevention;

2) healthcare among vulnerable categories of convicts and persons held under guard.

At the same time, no specific details are provided; for example, the number of persons who have improved their qualifications or where these persons work is not reported. It is not specified by what indicator healthcare among vulnerable categories is measured, so it is not known how many persons are covered by this healthcare or how the effectiveness of this healthcare can be evaluated.

The agency supposedly clarifies that “the project’s location extends to the Bila Tserkva correctional colony (No. 35), the Kachanivska correctional colony (No. 54), the Kremenchuk educational colony, and the Kyiv pre-trial detention centre.” And what is being done or will be done on this issue in other institutions? When? The agency does not provide a single hint.

The agency’s constatation that it is planned to create a resource centre in 2015 on the basis of the Chernihiv Juridical College is just as meaningless. What this centre will do and whether it exists at all is not clear. So, this is ordinary reporting on plans for the future.

Other constatations such as “In July 2014... a subgrant agreement was concluded,” “On 21 March 2012, a Cooperation Agreement was signed,” “On 26 March 2015, a new Memorandum of Understanding was signed with the ‘Médecins Sans Frontières’ organisation,” “In the period from 2012 to 2013, assistance was provided to the work of 29 foreign doctors” are of the same kind.

If these constatations were supplemented with the results of the named measures, if quantitative indicators of the listed measures were provided, it would be possible to evaluate their real significance. A simple enumeration does not allow for certainty that the agency has actually done something real, that the SpsU is not limiting itself to a bare imitation of activity.

If one compares this list of measures with the recommendations of the “Donetsk Memorial” report, it is obvious that, for example, nothing has been done at least to discuss the re-subordination of the agency’s medical services to the Ministry of Health. The SpsU does not report absolutely anything about the dynamics of financing the provision of medical services, about changes (or their absence) in the number of qualified medical personnel in prisons, or about raising (or not raising) the salaries of medical personnel to an adequate level. The agency is completely silent on the issue of strengthening responsibility for the failure to provide or improper provision of medical assistance to convicts. It is not possible to evaluate the situation with providing disabled persons with prostheses and other necessary medical accessories from the agency’s response.

In fact, the SpsU provided information that is not in any way a response to the recommendations of the “Donetsk Memorial” report, but only creates the impression of a complete imitation of a reaction. It is possible that this is because, in essence, the agency has nothing positive to report on these issues.

* * *

Regarding the prevention and non-admission of suicides among persons held in institutions belonging to the sphere of management of the SpsU of Ukraine. Work on the prevention and non-admission of suicides among persons held in institutions of the criminal-executive service is carried out in accordance with the requirements of “regulatory-legal and organisational-administrative acts of the SpsU of Ukraine.”

As of 01 June 2015, 18 cases of suicide were admitted in penal institutions and pre-trial detention centres, against 25 for the same period last year.

The most common reasons influencing a person’s decision to commit suicide are difficulties in adapting to the conditions of deprivation of liberty (27% of suicide cases were committed by persons who had been held in institutions of the criminal-executive service for less than 1 year, 13% of cases – from 1 to 2 years) and the loss of socially useful ties and socially important guidelines (20% of persons who committed suicide).

The issue “On the reasons for the growth in the number of suicides among convicts in individual correctional colonies, as well as measures taken by the bodies and institutions of the SpsU of Ukraine for improving the psychological support of persons prone to suicide, resolving issues of preventing suicides among persons held in institutions of the SpsU of Ukraine” was considered on 16.01.2015 at a staff meeting of the SpsU of Ukraine leadership, as a result of which an order “On the application of response measures to officials of the State Criminal-Executive Service of Ukraine for shortcomings in the organisation of work regarding the prevention and prophylaxis of suicides among convicts in penal institutions” was prepared.

On 29.05.2015, in the city of Cherkasy, an on-site meeting was held with deputy heads of territorial bodies of the SpsU of Ukraine, who, according to their job description, are curators of socio-psychological work. The agenda of the meeting included the issue of the state of organisation of work on the prophylaxis and prevention of suicides.

For the purpose of improving the performance of official duties by penal institution personnel regarding ensuring the right of convicts and persons held under guard to personal safety, the SpsU of Ukraine updated methodological recommendations regarding the prevention of suicides among persons held in penal institutions, as well as the equipment and use of rooms for conducting sessions of psychological relief, taking into account changes to the Penal Code of Ukraine, the Rules of Internal Order of penal institutions, approved by the Ministry of Justice of Ukraine order dated 29.12.2014 No. 2186/5, and the Typical job duties of a psychologist in a penal institution and pre-trial detention centre, approved by the Ministry of Justice of Ukraine order dated 04.11.2013 No. 2300/5.

For psychologists of penal institutions, jointly with the Institute of the Criminal-Executive Service, methodological recommendations “Prevention of suicidal manifestations among convicts and prisoners” were developed and issued with a circulation of 300 copies.

At the same time, we have positive examples of skillful and organised actions of penal institution and pre-trial detention centre personnel in preventing suicide cases. In the first half of 2015, 12 suicide attempts were stopped and the lives of convicts were saved. Accordingly, three SpsU of Ukraine orders on rewarding correctional colony and pre-trial detention centre personnel for skillful and professional actions were prepared.

Comment by DM

The agency in its response notes the most common reasons that influence convicts who commit suicide. However, these factors have always existed, and why a significant growth in the number of suicides occurred – the presence of these reasons does not explain.

It is telling that the agency reacts to the growth of suicides in a traditional way:

at a staff meeting of the SpsU of Ukraine leadership on 16.01.2015, the resolution of issues of preventing suicides was considered;

as a result of the meeting, an order was prepared;

on 29.05.2015, in the city of Cherkasy, an on-site meeting was held on these issues;

methodological recommendations regarding the prevention of suicides were updated;

methodological recommendations were developed and issued with a circulation of 300 copies;

three SpsU of Ukraine orders were prepared on rewarding correctional colony and pre-trial detention centre personnel for skillful and professional actions in preventing suicides.”

At the same time, all these, of course, useful actions hardly provide an answer to the main question: why did the level of prisoner suicides grow from 0.21 cases per 1,000 prisoners in 2003 to 0.66 in 2013, and to 0.7–0.8 in 2014–2015? So, in fact, there is no answer in the penitentiary service’s response to the question about the factors of the significant growth in suicides.

Regarding the factors of growth in mortality from 5.15 cases per 1,000 prisoners in 2009 to 10.8 in 2014, there is also neither an answer nor even any explanation of the situation.

Thus, the “Donetsk Memorial” recommendation is, in essence, actually not implemented.

* * *

Regarding the passportisation of convicts. As of today, the problem of the absence of funds in convicts for paying the state duty for issuing a citizen’s passport is not standing so acutely as to resolve it through the approval of a special regulatory-legal act. Yes, as of 01 June 2015, 310 convicts do not have the funds to pay the duty, which constitutes only 6.5% of the number of those who do not have a passport.

Half of these convicts are employed in the institution’s production and have the opportunity to earn the necessary funds. Regarding other convicts, this issue is resolved by the administration of penal institutions by initiating the issue of exempting convicts from paying state duty for issuing a passport before local self-government bodies and seeking the assistance of charitable organisations. As of today, such positive examples exist in the penal institutions of the Zaporizhzhia and Chernihiv regions.

Comment by DM

The SpsU admits the existence of the problem of the absence of funds in convicts for paying the state duty for obtaining a passport, but evaluates it as insignificant: “is not standing so acutely.” But it notes that it concerns more than 300 convicts. In the agency’s opinion, it is sufficient that the administrations of some penal institutions “initiate before local self-government bodies the issue of exempting convicts from paying state duty” for issuing a passport. It is good if such a step has a positive effect, but what if not? That is when the convict (and the institution administration as well) are faced with the absence of any regulatory document that could (force the government body) all the same ensure the convict with a passport. So the agency, while admitting the problem, in fact refused to facilitate its resolution.

Regarding the procedure for conducting searches and inspections. According to part four of Article 107 of the Penal Code of Ukraine, convicts are prohibited from purchasing, manufacturing, storing, and using money, valuables, objects, things, substances, and products prohibited for use in a colony.

In order to ensure compliance with the requirements of this provision, Article 102 of the Penal Code of Ukraine stipulates that convicts, their belongings and clothing, as well as the premises and territory of colonies, are subject to search and inspection. The procedure for conducting searches and inspections is determined by regulatory legal acts.

In addition, the requirements of Article 18 of the Law of Ukraine “On the State Penal Service of Ukraine” impose on officials and officers of penal bodies and institutions and pre-trial detention centres the duties to ensure law and order, compliance with the requirements of the regime and the rules of internal order in penal institutions, pre-trial detention centres, and on the territories adjacent to them, and to demand from convicts, persons held under guard, and other persons the performance of duties established by law. These persons are vested with the right to conduct inspections and searches of convicts and persons held under guard, their belongings, inspections of other persons and their belongings, and vehicles that are on the territories of penal institutions, pre-trial detention centres, enterprises of penal institutions, and on the territories adjacent to them on which regime requirements are established, as well as to seize items and documents prohibited for use in penal institutions and pre-trial detention centres.

According to paragraph 3.8 of the Regulation on the Territorial (Interregional) Paramilitary Formation of the State Penal Service of Ukraine, approved by the Ministry of Justice of Ukraine order No. 1325/5 dated 03.07.2013 and registered with the Ministry of Justice of Ukraine on 5 July 2013 under No. 1133/23665, the functions of the personnel of the territorial (interregional) paramilitary formation include conducting inspections and searches of the territory of residential and production zones, belongings of convicts and persons held under guard, inspections of other persons and their belongings, and vehicles that are on the territory of objects of the State Penal Service of Ukraine where regime requirements are established, as well as the seizure of prohibited items and documents.

The issue of removing the right to participate in conducting searches from the scope of authority of the personnel of the territorial (interregional) paramilitary formation is being studied.

At the same time, the personnel of these institutions are members of the rapid response groups created in penal institutions and pre-trial detention centres. Removing the right to participate in conducting searches from the scope of authority of this personnel would contradict the requirements of legislation and prevent them from fully performing the duties defined by legislation.

Comment by DM

The agency’s citation of Para 4, Art. 107 and Art. 102 of the Penal Code of Ukraine, Art. 18 of the Law of Ukraine “On the State Penal Service of Ukraine,” as well as Para 3.8 of the Regulation on the Territorial (Interregional) Paramilitary Formation of the State Penal Service of Ukraine, which are used to justify the necessity of conducting searches, is irrelevant. This is a certain imitation of a response by the agency because the recommendations of “Donetsk Memorial” do not mention anything about the points discussed in the specified legislative norms.

Regarding the direct removal of the right to participate in conducting searches from the scope of authority of the personnel of the territorial (interregional) paramilitary formation, the agency has stated that the issue is being studied (however, it is unclear why it is being studied? With what purpose? What for? How long will the study last?).

The SpsU’s remark that “removing the right to participate in conducting searches from the scope of authority of (institution) personnel” supposedly because this personnel is “part of the rapid response groups created in penal institutions and pre-trial detention centres” would contradict “the requirements of legislation and prevent them from fully performing the duties defined by legislation” is also incorrect. No one prohibits personnel from participating in searches outside of rapid response groups. This poor explanation can only indicate that the agency lacks serious arguments for the participation of special unit fighters and rapid response groups in searches. Naturally, this is in addition to the actual desire to thus have the means to intimidate convicts, exert psychological pressure on them, and have the opportunity to arbitrarily use force.

The recommendation has not been implemented.

                                                           *  *  * 

Regarding the application of parole. In March of this year, the SpsU of Ukraine submitted to the Ministry of Justice of Ukraine a draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding Ensuring the Execution of Criminal Punishments and the Realisation of the Rights of Convicts,” which provides for amendments to part 3 of Article 154 regarding the procedure for early release from serving a sentence in the following wording:

“Regarding a convict to whom, in accordance with Articles 81 and 82 of the Criminal Code of Ukraine, parole from serving a sentence or replacement of the unserved part of the sentence with a milder one may be applied, the body or institution of execution of sentences shall, within a monthly period, send the convict’s petition to the court in the manner established by criminal procedural legislation. Simultaneously with the petition, the convict’s personal file and data characterising the convict’s behaviour while serving the sentence shall be sent to the court.”

Along with this, a large-scale campaign is being conducted with convicts and their relatives to explain the requirements of the provisions of Articles 537 and 539 of the Criminal Procedural Code of Ukraine, according to which the absence of a positive decision by the penal institution commission does not deprive the convict, their defence counsel, legal representative, or other persons of the possibility to apply to the court for consideration of the question regarding the possibility of applying parole.

Comment by DM

The DM proposal has been taken into account, the draft amendments to the Law have been supported, and now it is the turn of the parliament’s decision.

Conversely, prosecutors continue the practice of obstructing the granting of parole, in particular, the prosecutor of the Illichivskyi district of the city of Mariupol, interpreting Para 8 of Art. 154 of the Penal Code of Ukraine in his own way for persons transferred to a correctional centre (see Item 777 of the Report).

                                                           *  *  * 

Regarding the humanisation of punishment in the form of life imprisonment. On 03.03.2015, the draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding the Replacement of Life Imprisonment with a Milder Punishment” was registered in the Verkhovna Rada of Ukraine under No. 2292.

The SpsU of Ukraine has processed this bill and generally supported the introduction of the proposed changes, and has also submitted proposals regarding the terms for considering the possibility of applying the indicated incentive norms to convicts sentenced to life imprisonment.

The Verkhovna Rada Committee on Legislative Support for Law Enforcement is processing the draft Law of Ukraine “On Amendments to the Criminal Code of Ukraine Regarding the Humanisation of Criminal Liability for Women,” which provides for the abolition of life imprisonment for women.

Proposals regarding the introduction of these changes were submitted by the SpsU of Ukraine for consideration by the Ministry of Justice of Ukraine on 17.03.2015.

Comment by DM

Proposals regarding granting life-sentenced prisoners the right to parole (conditional release) were implemented in the law adopted in November 2015, which the President of Ukraine did not sign.

The bill on the abolition of the punishment of life imprisonment for all women is supported by the penitentiary service and is under consideration in parliament.

                                                           *  *  * 

Regarding the distribution, direction, and transfer for serving the sentence of persons sentenced to deprivation of liberty for a certain term and life imprisonment to penal institutions. The distribution, direction, and transfer for serving the sentence of persons sentenced to deprivation of liberty for a certain term and life imprisonment to penal institutions is carried out in accordance with part one of Article 93 of the Penal Code of Ukraine, as a rule, within the administrative-territorial unit corresponding to the place of residence before conviction or the place of permanent residence of the convicts’ relatives, taking into account their applications and the availability of vacant places. Accordingly, individual and personal orders regarding the distribution of convicts are prepared taking into account the indicated requirements.

At the same time, in accordance with the Regulation on the Appeals Commission of the State Penal Service of Ukraine on matters of distribution, direction, and transfer for serving the sentence of persons sentenced to deprivation of liberty, approved by the Ministry of Justice of Ukraine order No. 222/5 dated 08.02.2012 and registered with the Ministry of Justice of Ukraine on 10.02.2012, meetings of the Appeals Commission are held, namely, as complaints, applications, and other materials are received. Thus, in 2015, 686 materials were considered at the commission meetings, including appeals from convicts and their relatives regarding resolving the issue of transfer closer to their place of residence, and 624 of them were considered positively.

In general, in the presence of legal grounds and the real possibility of filling penal institutions, the SpsU of Ukraine implements the practice of maximum tolerant attitude towards appeals of convicts regarding distribution and transfer, in accordance with the norms of penal legislation.

Comment by DM

The agency has become more attentive to satisfying convicts’ requests for transfer to serve their sentence closer to the place of residence of their relatives. A bill aimed at increasing the level of mandatory nature of directing convicts to serve their sentence closer to the place of residence of their relatives is being considered in parliament.

Nevertheless, cases of refusals without real and sufficient grounds for the transfer of convicts at their request still occur.

                                                           *  *  * 

Regarding the cooperation of the SpsU of Ukraine with public representatives in terms of responding to human rights violations in penal institutions and pre-trial detention centres. The SpsU of Ukraine is ready for dialogue not only with “leading” human rights organisations but with all civil society institutions that appeal with proposals for cooperation.

The institution of public control over penal institutions is consolidated in Article 25 of the Penal Code of Ukraine and the Regulation on Supervisory Commissions of local state administrations, approved by the Cabinet of Ministers of Ukraine resolution No. 429 dated 1 April 2004 (as amended by the Cabinet of Ministers of Ukraine resolution No. 1042 dated 10 November 2010). The implementation of measures provided for by the Cabinet of Ministers of Ukraine resolution No. 996 dated 3 November 2010 “On Ensuring Public Participation in the Formation and Realisation of State Policy” (as amended) is being ensured.

Since 1 April 2015, assistance has been provided for the formation of a public council under the SpsU of Ukraine, the competence of which also includes issues of public control over the activity of bodies and institutions belonging to the sphere of management of the SpsU of Ukraine. The procedure for forming the composition of the public council under the SpsU of Ukraine does not belong to the competence of the SpsU of Ukraine, but the Service is an active participant in facilitating its work.

As already mentioned above, the SpsU of Ukraine also facilitates the improvement of the functioning of national and interdepartmental mechanisms for countering torture to strengthen guarantees of protecting citizens’ rights.

On 4 September 2014, during the second meeting of the Commission on State Policy in the Sphere of Execution of Criminal Punishments, a decision was made that mobile groups for carrying out inspections of the activities of penitentiary institutions would be headed by representatives of the public or the Ministry of Justice of Ukraine. In connection with this, on 13 May 2015, during a regular meeting of the public council under the SpsU of Ukraine, five candidates were determined who can head the mobile groups of the Commission on State Policy in the Sphere of Execution of Criminal Punishments for carrying out inspections of the activities of penitentiary institutions.

On 25 June 2014, under the auspices of the OSCE, a working meeting was held with the OSCE Project Co-ordinator in Ukraine, and two directions of prospective cooperation in 2015 were agreed upon regarding issues of:

1) improving mechanisms for public control over the activity of bodies and institutions belonging to the sphere of management of the SpsU of Ukraine;

2) improving the work of press officers of territorial bodies of the SpsU of Ukraine.

Earlier, in 2009–2010, with the support of the OSCE Project Co-ordinator in Ukraine, cooperation continued on creating conditions for the functioning of independent preventive mechanisms for preventing torture.

Comment by DM

The SpsU, as usual, reports with parameters that do not say anything about the content of measures and activity in general, and moreover – about the effectiveness of the measures. Thus, from the sentence that “on 25 June 2014, under the auspices of the OSCE, a working meeting was held... two directions of prospective cooperation in 2015 were agreed upon,” it is absolutely not clear what was done in this sphere in 2014, since six months had already passed since June in 2014.

Secondly, reporting on future activity is not the implementation of certain work, but only intentions that may not be justified. For example, the SpsU reports that “on 4 September 2014, during the second meeting of the Commission... a decision was made... In connection with this, on 13 May 2015, during a regular meeting... five candidates were determined.”

The Ministry of Justice, in its letter No. 3141/421-0-33-16/6 dated 02.02.2016, reported that during 2015, “working (mobile) inspection groups of pre-trial detention centres and penal institutions belonging to the sphere of management of the SpsU of Ukraine did not carry out (inspections).” At the same time, the SpsU response does not contain a single word about reacting to the “Donetsk Memorial” proposal “to develop and implement, in cooperation with leading human rights organisations, a procedure (algorithm) for effective and rapid response to reports of probable human rights violations in penal institutions.”

Absolutely nothing is reported about “discussion in SpsU of Ukraine institutions and bodies the results of independent research and monitoring, annual Reports prepared and distributed by public organisations and other independent institutions, and taking effective response measures.”

Moreover, there is absolutely no word in the agency’s response about “the agency’s actions and measures aimed at implementing the results of research and their recommendations.”

Thus, the agency did not leave the cited “Donetsk Memorial” recommendations 36, 37, and 38 without attention, yet at the same time, what has been done cannot be evaluated in the absence of concrete results.

                                                           *  *  * 

Regarding the cooperation of the SpsU of Ukraine with the Docudays UA International Human Rights Documentary Film Festival.

On 7 July 2014, the SpsU of Ukraine signed a Memorandum of Understanding between the SpsU of Ukraine and the Docudays UA International Human Rights Documentary Film Festival (hereinafter – Memorandum). The Memorandum states that the SpsU and the Docudays UA International Human Rights Documentary Film Festival (hereinafter – Festival) confirm their intention to continue cooperation and aim to increase the level of human rights observance in bodies and institutions belonging to the sphere of management of the SpsU of Ukraine.

The personnel of the State Penal Service of Ukraine have repeatedly participated in events held by the Festival. Within the framework of the special programme “Docudays UA for penal institutions,” the Festival, together with well-known human rights defenders, has repeatedly visited penal institutions to show festival films about human rights to convicts.

In accordance with the Memorandum, within the framework of the project “Campaign for Human Rights in Ukraine using the tools of the Docudays UA International Human Rights Documentary Film Festival” (with the support of the Delegation of the European Union to Ukraine), it was planned in 2014 to create, by joint efforts, permanent Docudays UA media education film clubs on human rights in 5 departmental educational institutions of the SpsU of Ukraine and in 10 penal institutions (Donetsk, Lviv, Kharkiv, Kherson, and Chernihiv regions).

As of 01.04.2015, 31 Docudays UA media education film clubs have been created in the bodies and institutions of the State Penal Service of Ukraine.

Paragraph 2.1 of the Memorandum provides for the holding of a seminar “Docudays UA Film Club as an instrument of human rights education” for heads of film clubs of departmental educational institutions and penal institutions of the SpsU of Ukraine, who are personnel of the State Penal Service of Ukraine.

The holding of the event mentioned above is planned for 17–19 July 2015 at the premises of the Human Rights Educational House.

Taking this opportunity, we inform you that in 2014–2015, with the support of the UNICEF Children’s Fund in Ukraine, a project on creating one-minute films, including those on legal topics about the observance of the rights of minors, is being implemented in educational colonies.

Comment by DM

The recommendation is being implemented.

                                                           *  *  * 

Regarding ensuring libraries of penal institutions with legal literature. As of today, the library fund of correctional colonies numbers over 1.4 million copies of fiction and publicistic literature.

About 26 thousand copies of periodicals have been subscribed to for convicts.

In addition, in accordance with the requirements of Articles 107 and 110 of the Penal Code of Ukraine, convicts are provided with access to the global Internet, thanks to the use of which convicts have access to any legal literature.

Comment by DM

The “Donetsk Memorial” recommendation 40 concerns ensuring institutions not with any literature, but specifically with legal literature, primarily codes and texts of the European Prison Rules, in sufficient quantities. The absence of a mention in the response specifically about such literature forces one to consider that institutions are not provided with such literature and, possibly, have no plans to be provided with it, which is all too alarming.

The SpsU’s reference to convicts’ access to the Internet means that only those convicts who have the funds to pay for the use of the Internet, and furthermore only in those institutions where places for using it have been equipped, can actually use the possibility of access to legal literature. Provided that the administration does not find a pretext to refuse the use of the Internet. Such a situation cannot be considered free access for all convicts.

Thus, this recommendation remains actually not implemented, and therefore remains relevant.

                                                           *  *  * 

                                                               *  *  * 

Recommendations of the 2014 Report for which the penitentiary service did not provide any information

1. Take measures without delay to carry out priority steps towards defining the main principles for creating a modern penitentiary system.

2. Take measures for appropriate personnel provision for the implementation of changes.

3. The penitentiary service is proposed not to obstruct the improvement of penal legislation and to begin improving the agency’s regulatory framework, including updated Rules of Internal Order.

4. Conduct a comprehensive analysis without delay of regulatory legal documents and other normative acts of the SpsU of Ukraine for compliance with international standards, involve the best specialists in this work, including those from outside the penitentiary service.

5. Cancel without delay the norms of departmental legal acts that violate human rights and/or do not meet the requirements of the Penal Code, the provisions of the European Prison Rules, and do not take into account the recommendations of the European Committee for the Prevention of Torture.

8. The agency is proposed, in its rule-making activity, to begin giving priority to issues of human rights observance over problems of the technical functioning of the service, in particular, operational units. At the same time, significantly increase attention to issues of human rights observance and respect for the dignity of both persons held in detention and institution personnel. Involve independent specialists and the public in the discussion of drafts of regulatory documents.

10. Begin thorough training of prison personnel in international standards for the treatment of prisoners, involve specialists and leading human rights organisations for this with periodic checking of knowledge, categorically avoiding profanation and imitation of training in the process.

11. Initiate the development of amendments to the Law of Ukraine “On the State Penal Service of Ukraine,” aimed at significantly increasing the level of social security for employees of institutions of the criminal-executive system.

12. Adopt a clear decision regarding the further fate of personnel of penal institutions who remained working in territory not controlled by the Ukrainian authorities, determine their status, and reliably bring this decision to their attention.

14. Develop a reliable procedure for registering the outgoing correspondence of convicts and make it accessible to all convicts. Cancel the actual censorship of correspondence, and make its review selective, not total; if necessary, facilitate the adoption of an appropriate regulatory act.

25. Ensure guaranteed access for convicts to information about themselves (medical cards, correspondence accounting cards, decisions regarding parole, etc.) with the possibility of being obliged to make extracts unobstructed and keep them with themselves.

26. Significantly narrow the discretionary powers of institution administrations regarding the imposition of penalties to an adequate level. Set out an exclusive list of actions for which disciplinary penalties may be applied.

27. Introduce clear procedures for recording work and its payment, provide convicts with the possibility to control the correctness of the certification of the time of their work and its volumes. End the practice of using unpaid labour. Strictly adhere to the norms of crediting earnings to personal accounts defined by legislation and hold accountable persons who violate these norms of crediting.

28. Actively facilitate the introduction of changes in legislation regarding ensuring the compensation of loss of work capacity to prisoners during their serving of a sentence from the moment of its onset.

34. End the deduction of funds from convicts for food, footwear, linen, and clothing, limiting deductions to those for utility and household and other services, as provided for by Art. 121 of the Penal Code of Ukraine.

35. Consider the issue of optimising the number of penal institutions in the country (reducing their quantity) and adopt a strategic decision on building new prisons instead of old ones, carry out all necessary financial calculations, and consolidate this decision in a special state programme.