How Ukraine Ignores the Fight Against Ill-Treatment in Prisons

For almost the entire period since attaining independence, the Ukrainian authorities have declared their commitment to complying with European human rights standards. All too often, these declarations remained mere words, backed up neither by actions nor even by any genuine desire to adhere to them. At the same time, European institutions – first and foremost the Council of Europe – have always sought to help and facilitate Ukraine’s attainment of civilised standards.
One example of the Ukrainian authorities’ actual response to the Council of Europe’s attempts to make progress in implementing mechanisms to combat ill-treatment in prisons is presented in the following analysis.

At the end of 2013, Council of Europe expert Jim Murdoch conducted a study of the problems of ill-treatment of prisoners in Ukrainian penitentiary institutions, and prepared and presented to the penitentiary service the report ‘Investigation of Allegations of Ill-Treatment within the State Penitentiary Service of Ukraine’. The head of the non-governmental organisation ‘Donetsk Memorial’ participated alongside the expert in meetings with officials of various agencies and in gathering information for the report. This report concluded with a series of recommendations, the list of which was preceded by the following observation:
‘The following specific recommendations are offered in light of the above findings and the results of the discussions. The need to oversee their implementation is obvious: annual reporting on current results will help restore public trust in the Penitentiary Service and its institutions regarding their capacity to resolve long-standing problems of the treatment of people in prisons. Some recommendations contain proposals for new disciplinary offences, and it is crucial that the prescribed sanctions correspond to the gravity of any violation.’
Considerable time has passed since the publication of the report – enough to practically demonstrate efforts to restore public trust in the Penitentiary Service and its institutions regarding their capacity to resolve long-standing problems of the treatment of people in prisons, as well as to evaluate the extent to which the recommendations provided in the report have been utilised.
‘Donetsk Memorial’ sent letter No. 63 dated 24 February 2021 to the leadership of the agency, raising questions about the implementation of certain recommendations in the report. A response to this inquiry was provided (letter No. 14-78-21/54-Pi of 5 March 2021) signed by Oleksiy Reshetnyak, the Acting Head of the Department for Records, Organisational-Analytical and Administrative-Support Provision of the Department for the Execution of Criminal Sentences.
Below are the answers to the inquiry questions and comments on them in the following sequence – first the questions from ‘Donetsk Memorial’, then the text of J. Murdoch’s report recommendation relating to the question, followed by the response of the agency, supplemented where necessary by a comment from ‘Donetsk Memorial’.

How many prisoners in 2020, and separately in 2019, were transferred to another facility to ensure their safety specifically due to their lodging of complaints?
Recommendation 2. The principle that prisoners should be able to lodge complaints about ill-treatment without fear of reprisal may mean that, where necessary in exceptional cases, such a prisoner should have the right to request a transfer to another facility and to be transferred without undue delay.

Response. In 2019, due to the submission of complaints or applications to ensure the personal safety of convicts and remanded persons, 13 individuals were transferred to other correctional institutions and pre-trial detention centres of the State Criminal Executive Service of Ukraine, and in 2020 – 25 individuals.

Are intimidation or the imposition of punishment for communicating with monitoring bodies defined in laws or regulations as a distinct disciplinary offence?
Recommendation 3. Intimidation or the imposition of punishment for communicating with monitoring bodies should be classified as a distinct disciplinary offence.

Response. ‘Current regulatory and legal acts governing the procedure and conditions for the execution and serving of criminal sentences do not define such disciplinary measures applied to persons deprived of their liberty as intimidation or the imposition of punishment for communicating with monitoring bodies.’
The response then details at length the list of penalties ‘for failure to perform duties and violation of established prohibitions applied to persons serving sentences of deprivation of liberty’. Nearly half of the text of O. Reshetnyak’s entire response is dedicated to this description of all possible penalties.
Comment. The agency’s response to this question is extremely important and telling. It refers to penalties that can be applied to persons deprived of their liberty, whereas the recommendation refers to intimidation or the imposition of punishment for communicating with monitoring bodies specifically by institution staff, not by persons deprived of their liberty. After all, why would some convicts intimidate other convicts for communicating with monitoring bodies? Furthermore, one wonders how the esteemed head of the agency’s administration imagines convicts imposing punishment on one another? It is clear that O. Reshetnyak’s response is absurd.
Instead, the agency’s response eloquently demonstrates that its leaders cannot even conceive that it is the agency’s staff, rather than the convicts, who should be held liable for potential intimidation or the imposition of punishment for communicating with monitoring bodies, and that liability for such actions should be enshrined in legislation. Seven years after receiving J. Murdoch’s Report, the agency has done nothing to define such liability. Thus, even today, any agency employee can intimidate convicts or even impose punishment on them for communicating with monitoring bodies, without facing any liability for their actions, as Ukrainian legislation does not provide for it, and the penitentiary agency, having received the esteemed expert’s recommendation seven years ago to define such actions as a distinct disciplinary offence, has not taken a single step over these years.
Evidently, this recommendation has been ignored.

How many officials were held liable in 2020, and separately in 2019, for attempting to obstruct correspondence related to a complaint of ill-treatment?
Recommendation 3. ...Correspondence related to a complaint of ill-treatment must be treated as privileged. Any attempts to obstruct such correspondence, including the deliberate destruction of mail, must lead to the liability of the responsible officials.
Comment. Due to a highly specific understanding by the agency's leadership of implementing liability for complaints of ill-treatment, there is not a single word about this question in O. Reshetnyak’s response. That is to say, it must be understood that if attempts to obstruct correspondence related to a complaint of ill-treatment do occur, no one in the agency will record them as a violation, and the agency's staff will not bear any liability for such potential actions, as none is provided for. Thus, such actions will remain unpunished, since the agency has no intention of creating any legislative obstacles to such actions by the staff...
This recommendation has also been ignored.

Does the penitentiary service have reports or information on the results of monitoring data collection regarding complaints and other reports of ill-treatment from the Commissioner for Human Rights?

Does the penitentiary service have reports or information on the results of monitoring data collection regarding complaints and other reports of ill-treatment from relevant parliamentary committees or from NGOs (and if so, which ones)?

Recommendation 7. A general system for collecting data on complaints and other reports of ill-treatment is necessary. This will help identify, at an early stage, indications of the potential presence of such cases in individual institutions. It will also assist the relevant authorities in supervising the subsequent investigation and resolution of complaints or reports, including the execution of any formal actions regarding the complaints. Among the bodies responsible for carrying out such monitoring, the office of the Commissioner for Human Rights must certainly be included, as well as the relevant parliamentary committees, and potentially NGOs of a relevant focus.
Response. ‘The Department receives reports on the results of monitoring visits conducted by representatives of the Verkhovna Rada Commissioner for Human Rights to correctional institutions and pre-trial detention centres of the State Criminal Executive Service of Ukraine for processing and taking response measures. All reports are processed, and plans to rectify the identified shortcomings are developed, taking into account the recommendations specified in the reports. The leadership of the Department exercises constant control over the implementation of the action plan to rectify the identified shortcomings.
Correctional institutions and pre-trial detention centres of the State Criminal Executive Service of Ukraine are constantly visited by representatives of supervisory bodies and representatives of non-governmental community and human rights organisations. With the facilitation of the institutions’ administration, during visits, all monitors are provided with the opportunity for unhindered communication with convicts and persons remanded in custody, including in private.’
Comment. These two questions, like Recommendation 7 itself, relate to the monitoring of data collection from the Commissioner for Human Rights specifically regarding complaints and other reports of ill-treatment. Information from relevant parliamentary committees or NGOs should also relate not to just any aspects of prison life, but specifically to cases of ill-treatment. The agency's response refers to reports on the results of monitoring visits conducted by representatives of the Verkhovna Rada Commissioner for Human Rights. However, such reports do not usually contain information on facts of ill-treatment, but concern mainly other issues – living conditions in prisons, prisoners receiving parcels, access to medical services or telephone calls, and a host of other aspects of prison life, whereas information on facts of ill-treatment is almost always absent from them.

Therefore, the information provided by the agency practically does not relate to the substance of the recommendation in J. Murdoch’s report or the corresponding questions of ‘Donetsk Memorial’; the agency does not single out information on ill-treatment as a separate category.
It is telling that the information provided by the agency does not contain a single concrete indicator not only regarding facts of potential ill-treatment, but generally regarding the shortcomings identified: how many were discovered over a given period, of what nature they were, how many have been rectified, etc. Behind the provided information that allegedly ‘all reports are processed, and plans to rectify the identified shortcomings are developed, taking into account the recommendations specified in the reports’ lies a factual vacuum, as is the case with the subsequent reassurance: ‘The leadership of the Department exercises constant control over the implementation of the action plan to rectify the identified shortcomings.’
From the information provided that allegedly ‘correctional institutions are constantly visited by representatives of supervisory bodies and representatives of non-governmental community and human rights organisations’, it is impossible to establish, for example, even the number of such visits.
And the assertion that during visits ‘all monitors are provided with the opportunity for unhindered communication with convicts and persons remanded in custody, including in private’ is simply untrue (see Reports).
This recommendation of J. Murdoch’s report has also been effectively ignored.

Has a distinct investigative body been established within the structure of the prosecution service to deal specifically with cases of ill-treatment by public officials of the penitentiary service?
Recommendation 8. An independent investigative body must be established immediately to investigate all complaints or reports of possible cases of ill-treatment of prisoners. If, in the short term, delays in this process are unavoidable, an independent body must be established to supervise the prosecution’s handling of specific cases. In any event, as soon as possible, at least a distinct investigative body should be established within the structure of the prosecution service to deal specifically with cases of ill-treatment by public officials of the penitentiary service. The need to establish such an institution in Ukraine is clear in light of past and present systemic problems in the existing system.
In the agency's response, there is not a single word about the implementation of this recommendation. It is obvious that, in reality, a distinct investigative body within the structure of the prosecution service to deal specifically with cases of ill-treatment by public officials of the penitentiary service has not been established – not only ‘as soon as possible’, but at all over the seven years.
Thus, this recommendation has also been ignored.

Have clear instructions or guidelines been introduced regarding the procedure and timeframes for investigating complaints or reports of ill-treatment by monitoring or inspection groups of the Penitentiary Service of Ukraine?
Part 1 of Recommendation 10. Clear and unambiguous instructions or guidelines must be introduced regarding the procedure and timeframes for investigating complaints or reports of ill-treatment by monitoring or inspection groups of the Penitentiary Service of Ukraine. These guidelines must be published to ensure greater transparency and to signal to prison staff a clear intention to eradicate ill-treatment through effective investigation and punishment for such actions.

Response. ‘By Order of the Ministry of Justice of Ukraine No. 254/5 dated 2 February 2017 “On Approving the Procedure for Receiving and Recording in Correctional Institutions and Pre-trial Detention Centres Statements and Reports of Committed Criminal Offences and Other Events”, a mechanism is defined for receiving and recording statements and reports of criminal offences and other events committed on the territory of correctional institutions and pre-trial detention centres.’

Comment. The agency's response is about something completely different from the recommendation. The Ministry of Justice's Order concerns statements about criminal offences and unknown ‘other events’. Obviously, a certain circle of penitentiary service staff is to execute it. In contrast, the recommendation in J. Murdoch’s report refers to ‘instructions or guidelines regarding the procedure and timeframes for investigating complaints or reports of ill-treatment by monitoring or inspection groups of the Penitentiary Service of Ukraine’, rather than the investigation of any criminal offences or mysterious ‘other events’. And these should have been executed by members of the monitoring or inspection groups of the Penitentiary Service of Ukraine. The agency has not published these guidelines in seven years, because it has not even drafted them. Thus, prison staff have still not received a signal of a clear intention to eradicate ill-treatment through effective investigation and punishment for such actions.
The recommendation has been ignored, and it seems this was done deliberately.

Were separate special Reports on the number of submitted and considered complaints, as well as on sanctions applied to violators, published by the Penitentiary Service during 2020 and separately during 2019?
Part 2 of Recommendation 10. The Penitentiary Service must regularly (at least annually) publish reports on the number of submitted and considered complaints, as well as on sanctions applied and cases referred for potential prosecution.
In the agency's response, there is not a single word about the implementation of this recommendation. This can only mean that, in reality, separate special Reports on the number of submitted and considered complaints, as well as on sanctions applied to violators, are neither compiled nor published by the Penitentiary Service.
In response to another separate inquiry regarding the number of convicts’ complaints on any issues sent to the Ministry of Justice in the first half of 2021, Deputy Minister of Justice Olena Vysotska reported (letter No. 61835/PI-Yur-3420/27 dated 5 August 2021) that ‘according to the data of the electronic document management system “Megapolis.DocNet”, 70 complaints were registered with the Ministry of Justice during the above-mentioned period’.
The next two paragraphs of her letter provide an idea of the actual procedure for recording convicts’ complaints, in particular, separate complaints of ill-treatment:
‘At the same time, we inform you that the search for documents in the specified period was carried out using the search parameters “complaints”, “summary contains “convict”, so the value obtained may not be final.
Additionally, we note that it is not deemed possible to provide more detailed information on the number of satisfied complaints or those recognized as well-founded, due to the lack of appropriate parameters for searching documents in the electronic document management system of the Ministry of Justice. The recording of incoming correspondence at the Ministry of Justice is not kept in a breakdown of the requested information.’
Thus, the Ministry of Justice records merely the number of complaints, regardless of their content, because the electronic document management system of the Ministry of Justice is simply not configured to isolate complaints specifically regarding ill-treatment; most likely, if there were a desire, it could be configured to do so. However, neither the leadership of the State Criminal Executive Service nor the leadership of the Ministry of Justice considers it appropriate to do so, apparently believing that no matter what the Council of Europe experts recommend to combat ill-treatment in prisons, the most reliable method, used for a long time, is simply not to see such cases, not to record them. Then, the words are easily uttered: no cases of ill-treatment of prisoners have been registered.
Thus, this recommendation has also been ignored.

Has a system been established to protect whistleblowers who in good faith report cases of ill-treatment committed by their colleagues?
Are staff of the penitentiary service duty-bound to report cases of ill-treatment? If so, by which document?
Recommendation 14. Prison staff must have a formal duty to report cases of ill-treatment even in the absence of an appropriate complaint from the prisoner. This formal duty should be further enshrined in the Code of Ethical Conduct for Prison Staff. There must be... the introduction of measures to protect whistleblowers. Prison staff must have access to confidential reporting systems, as well as receive guarantees that they themselves will not face sanctions for reporting.
A system of protection must be introduced for whistleblowers working in the penitentiary service, along with a duty to report potentially credible cases of ill-treatment: protection must be provided for individuals reporting such cases in good faith, and clear channels for such reports must be created.
In the agency's response, there is not a single word about whistleblowers and the system for their protection. The agency avoids any options to provide on a regulatory level for the possibility of recording possible cases of ill-treatment and providing for liability for them. Thus, in Ukraine, penitentiary service staff still do not have a regulatorily prescribed duty to report cases of ill-treatment.
Thus, this recommendation has also been ignored.

Do the prison internal regulations reflect the provisions of the Code of Ethics? How are the rights of prisoners set out in them? Recommendation 16. The existing prison internal regulations must be amended to reflect the provisions of the new Code of Ethics. The rights of prisoners must be clearly and unambiguously set out. The application of any security or disciplinary measures must clearly correspond to the circumstances of the specific case and occur in an objective manner, in order to prevent any hints of corruption or abuse.
Response. ‘In addition, the Code of Ethics and Professional Conduct for Staff of the State Criminal Executive Service of Ukraine was developed and approved by Order of the Ministry of Justice No. 1272/5 dated 14 April 2017 (as amended). It provides for the prevention of manifestations of cruel or degrading treatment towards convicts, respect for their natural right to life, legal rights to freedom of thought, conscience, self-expression, health preservation, property ownership, etc.’
Currently, the Law of Ukraine “On Pre-trial Detention”, the Internal Regulations of Correctional Institutions, the Internal Regulations of Pre-trial Detention Centres, and the Criminal Executive Code of Ukraine clearly define the rights and duties of convicts and remanded persons, as well as the relationships between institution staff and detainees and convicts.’

Comment. O. Reshetnyak’s response very eloquently reflects the lack of understanding by the agency's leadership of the essence of J. Murdoch’s recommendations. It mentions that the Code of Ethics and Professional Conduct for Staff of the State Criminal Executive Service of Ukraine provides for the prevention of manifestations of cruel or degrading treatment towards convicts, respect for their natural right to life, and legal rights to freedom of thought, conscience, self-expression, health preservation, property ownership, etc. However, the Code is not a regulatory document, the violation of which entails liability. It is at best a list of good wishes. At the same time, there is not a single word in the agency's response about any regulatory documents that would provide for liability for manifestations of cruel or degrading treatment towards convicts.
It is also important to emphasize that Recommendation 16 is not about the presence of certain norms in the Code of Ethics, but that ‘the existing prison internal regulations must be amended to reflect the provisions of the new Code of Ethics’. Seven years after the publication of the report, the penitentiary agency has still not incorporated the fine words of the Code of Ethics into a regulatory document, namely the prison internal regulations, which would make it possible to hold individuals liable for violating these rules. Thus, even in 2021, potential manifestations of ill-treatment of prisoners that contradict the provisions of the Code of Ethics will remain unpunished, because corresponding amendments have not been introduced to the prison internal regulations as proposed in the recommendation.
Thus, this recommendation of J. Murdoch’s report has also been ignored.

How many cases of disciplinary or other punishment were recorded in 2020, and separately in 2019, for obstructing prisoners' right of access to medical care and/or for violating the confidentiality of a medical consultation?
19. Prisoners must be able to consult medical staff confidentially, without prison staff being allowed to screen requests for access to medical care, and without fear of punishment for doing so. Any attempt by prison staff to obstruct this right of access, or to violate the confidentiality of a consultation, must lead to disciplinary action. The question of transferring prisoners to a hospital for treatment (inside or outside the prison system) must be decided by qualified medical staff, rather than by the security service or the hospital administration.

The agency's response contains not a single word about the implementation of this recommendation. It is obvious that, in reality, cases of disciplinary or other punishment of penitentiary service staff, particularly medical units operating in prisons, for obstructing prisoners' right of access to medical care and/or for violating the confidentiality of a medical consultation are not recorded, because both the practice and the procedure for applying disciplinary punishment for such actions of prison staff are likely completely non-existent.
Thus, this recommendation has also been ignored.

Does the penitentiary service have statistical information from prison medical services regarding detected injuries in prisoners? How often in 2020, and separately in 2019, were such reports or information prepared?
Recommendation 21. Prison medical services must periodically (at least once a year) prepare statistical information on detected injuries, and transmit it to the prison administration, relevant ministries, and internal and external monitoring bodies (in particular, the prison system inspectorate and the office of the Commissioner for Human Rights). Such statistical data must also be available to the public.

The agency's response does not contain a single word regarding the existence of such statistical information. This is probably because no reports or information on detected injuries in prisoners are prepared, as they are simply not collected. The agency's leadership deliberately avoids introducing a procedure for identifying, recording, and studying this aspect of prison life. And this is despite the recommendations of the Council of Europe expert provided seven years ago.
Thus, this recommendation has also been ignored.

CONCLUSIONS.
The presented analysis of the authorities’ response, first and foremost that of the Department for the Execution of Criminal Sentences and the Ministry of Justice of Ukraine, to the recommendations of the Council of Europe expert clearly indicates the following.
The Ukrainian authorities are absolutely indifferent to improving the situation in the area of combating ill-treatment in prison institutions. The efforts of the Council of Europe to help Ukraine by having its experts provide recommendations prove futile. There is a complete lack of political will in Ukraine to combat ill-treatment in prisons. Consequently, those prison system staff who resort to ill-treatment go unpunished and can feel completely safe.
The story of the complete disregard for the recommendations of the Council of Europe expert over seven years eloquently shows that the authorities only simulate the implementation of European human rights standards in prison practices. In reality, they remain indifferent to any positive changes and are unable to implement them. Unfortunately, this is often not because they do not want to, or even because they cannot – they simply do not understand them. The authorities do not understand the language of respecting human rights in prison operations. But this does not relieve them of responsibility for their inaction.