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IV. CiviL and PERSONAL rights in ukraine: THE STATUS OF LEGISLATIVE SECURITY AND EXERCISE |
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Restructuring Ukraine’s penitentiary system and the state of affairs in penal institutions. In order to pursue the continued restructuring of the system of execution of criminal sentences and to meet the commitments to the Council of Europe, a State Department for the Execution of Penalties of Ukraine (SDEP) was established. On July 31, 1998 the Regulation on the State Department for the Execution of Penalties of Ukraine was approved and relevant amendments were introduced to some laws. Thereby a legal framework was set up for the independent operation of bodies and agencies for the execution of sentences. Notably, since 1992 the President issued 11 Edicts and Parliament adopted three resolutions and introduced amendments to 16 laws and 15 CMU resolutions so as to improve the operation of the system of criminal sentence execution, humanize serving criminal sentences and enforce the law in this area of legal relations. Taking into account the expertise of European penitentiary systems, SDEP set up a social-psychological service and devised a respective regulation and individual programs of social-psychological work among the convicts. This service numbers 2,400 specialists. Besides, penal institutions employ staff psychologists, one per every 600 convicts. Cooperation is extending with NGOs and the public on issues of educating convicts. Representatives of different religions are also actively concerned with the moral state of convicts. In November 1999 the Ukrainian Orthodox Church and the SDEP concluded an agreement on cooperation. The Kyiv Institute of Internal Affairs and the Chernihiv Law School under the SDEP train specialists for the establishments within the sentence execution system. In 1998 they trained 769 specialists and about 3,000 persons upgraded their skills at the law school. For all that, the Commissioner for Human Rights has to state that in the establishments of the penitentiary system human rights are being basely violated. That is why control over compliance with human rights within the penal system and temporary detention wards is among the high-priority areas of the Commissioner’s activity. At January 1, 2000 the criminal sentence execution system within the SDEP numbered 181 establishments, including 126 correctional labor colonies (21 – general regime, 34 – reinforced regime, 40 – strict regime, 8 – special regime, 18 – correctional labor colonies-settlements, 5 – specialized hospitals), 11 educational labor colonies for convicted minors, 33 investigation wards, and 11 medical treatment-labor dispensaries. In all, they held 218,800 persons, including 63,300 in correctional labor colonies with a reinforced regime, 13,700 sick convicts in prison hospitals, and 44,700 under detention. Besides, the inspectorate for correctional labor had on its register 121,000 persons sentenced to punishment without deprivation of liberty. In 1999 a total of 11,800 convicts did time in prisons, of which 35,300 (47.8%) had been sentenced before. Isolation wards took in 112,600 persons. At January 1, 2000 there were 19,600 murderers under detention:
Penal institution detain 68,500 convicts serving prison terms of more than five years, while 71,900, or 45.9%, are not subject to release on probation or transfer to colonies. At January 1, 2000 the following sentences were endured in penal institutions:
Convicts with sentences under five years account for 55% of the prison population; most of them committed offenses that do not constitute a great public danger. The government has effected some measures to improve the conditions in the penal institutions. In the period from 1994 to 1998 the old medical treatment-labor dispensaries were reconstructed into 12 correctional labor colonies for 9,000 inmates and the existing investigation wards were enlarged to hold an additional 10,200 detainees. Yet the Commissioner believes that the situation with the placement and maintenance of convicts is still extremely critical, although during the past few years their number tended to go down. In 1998, 232,598 persons were convicted, of them 86,437 to prison terms; in 1999 the figures were 227,213 and 83,399 respectively. Over the past two years women accounted for more than 67,000. Every month penal institutions take in from 2,500 to 3,000 inmates. Such a high rate aggravates the problems of placement, employment and creation of proper conditions for maintenance. To date investigation wards and penitentiaries keep 16,900 more inmates than established by sanitary and hygienic standards. The pace of arrival of offenders at penal institutions continues to grow. At January 1, 2000 investigation wards were short of 11,900 places, while penitentiaries of enforced regime were short of 9,500 places. Annual amnesties are perhaps the only way to regulate the reduction of the prison population. The amnesty of 1998 freed 38,500 persons, 18,000 in 1999, and 33,000 are to be freed in the year 2000. Ukraine is actually among the world leaders in applying deprivation of liberty as punishment. Its share in the other types of punishments in, say, 1998 accounted for 35.1%, which is more than in the Russian Federation (32.7%) and Moldova (20.8%). Of the total number of convicts 59.1% (or 51,000) serve prison terms up to three years, i.e. the majority are cases that present no public threat. In the opinion of the Commissioner the conditions in Ukraine’s penitentiary establishments are, on the whole, far from the generally recognized international standards, in particular the Standard Minimum Rules for the Treatment of Prisoners, Basic Principles for the Treatment of Prisoners, European Penitentiary Rules, UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987. The Commissioner for Human Rights had the opportunity to see the truth of such an observation when introduced to the establishments of the penitentiary system abroad where Ukrainian citizens are held in custody. One such visit was made to a prison in Bilolenka (Poland) where 17 Ukrainian citizens do time. In a conversation one of them said that he did not want to serve his sentence in Ukraine, because the conditions of custody in Poland were much better. During a working visit to the People’s Republic of China whose penitentiary establishments are constantly criticized by the mass media and NGOs, the Commissioner visited one of Beijing’s best men’s prison where about 2,500 inmates are in custody. It was built several years ago. All the prisoners are employed. In each cell there are not more than 12 men. In the cells, apart from the prisoners’ personal belongings and books, there are aquariums and flowerpots; the windows have no bars and there is much light. Special educational programs are demonstrated for the prisoners through cable television. Owing to the high professional level of administration and effective educational work only 3% of the convicts commit repeated offenses after serving their time. In both of these countries the reform of the penitentiary system has already become a reality. Given constant overcrowding and inadequate communal, sanitary and hygienic conditions of custody as well as bad catering and medical services, the penal institutions in Ukraine are actually becoming desocialized, ruining the personality of convicts morally, psychologically and physically. They create a criminogenic danger in society and contribute to the emergence of sizable strata of people who suffer from social pathologies. Such a conclusion is confirmed by official statistics and documents of state bodies, NGOs and the prosecutors’ supervision, by the interviews of the Commissioner with the administration of penal institutions, foreign experts, as well as the complaints of persons under investigation and convicted offenders. During the past few years, the health of people held in investigation wards tended to become dangerously worse. In 1999 active forms of tuberculosis were diagnosed in 3,251 and skin-and-venereal diseases in 3,332 inmates. In the period from 1995 to 1999 the number of people who died in penal institutions increased from 1,326 to 3,012, i.e. 2.3 times. Apart from diseases, inadequate nutrition and medical services are among the reasons of the deaths. While in 1996 funding for catering accounted for 57.8% of the requirements, in 1999 it was 18.9%, i.e. three times less. In 1996 allocations for medicines and anti-epidemic measures accounted for 68% of the requirements, in 1999 it was only 6.6%, i.e. almost 10 times less. At January 1, 2000 penal institutions held almost 16,000 people who were in need of inpatient anti-TB treatment, i.e. every tenth convicted offender. The TB incidence rate in penal institutions is 17 times and the death rate 10 times higher than elsewhere. There are also high incidence rates of AIDS, syphilis, pediculosis, dysentery, and other epidemic and parasitic diseases. Therefore, the Commissioner has to emphasize again that compliance with human rights in Ukraine’s penal institutions is still utterly inadequate. From April 14 to December 31 the Commissioner received 539 appeals from inmates complaining about violations of their rights, and in 1999 such appeals numbered 1,372, i.e. 2.5 times more. Regrettably, our penitentiary establishments are a reflection of the dire socioeconomic situation in the country. Such a conclusion is confirmed by the inmates’ appeals and the meetings of the Commissioner and the Secretariat’s employees with the confined offenders at the investigation wards of the Security Service and those within the MIA system in Zaporizhia, Mykolaiv, Dnipropetrovsk, Luhansk and Kyiv, and at the correctional labor camps in Kyiv, Zaporizhia and Chernihiv oblasts. During the Commissioner’s personal meetings with suspects under investigation, the largest number of complaints centered on the unjustified long terms of investigation and court examinations as well as on the manifestly widespread practice of deprivation of liberty as a preventive measure. In order to provide society with prompt and objective information about the situation in the penitentiary establishments, the Commissioner for Human Rights has made it a rule to visit the institutions together with representatives of the mass media. Compliance with human rights at establishments of preliminary detention. The situation at investigation wards is perhaps the worst, what with their overcrowding and abnormal conditions of custody. The number of suspects in the cells of investigation wards exceeds by far sanitary standards. By late December 1999 Ukraine’s investigation wards had an available space for 32,800 detainees, but in reality there were 44,700. The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 arrestees were under custody without proper places; in Donetsk and Kharkiv the same circumstances affected 1,300 arrestees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of arrestees do not have personal bunks and are forced to sleep by turns. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions. The administration of investigation wards is next to helpless in guaranteeing the safety of people under custody. Different categories of offenders are not kept separately. Murderers, rapists and racketeers are brought together into one cell with petty thieves or other persons whose offenses present a minor danger to society. The anti-sanitary conditions in investigation wards contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of 326 detainees, or twice as much as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy. In the investigation wards the custody regimen of suspects whose guilt has yet to be established is much more severe than in other penitentiary establishments. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media. The Commissioner for Human Rights is receiving quite a few appeals with descriptions of beatings, intimidation and other illegal methods of extorting evidence. Presented below is one such appeal addressed to the Commissioner for Human Rights by Mrs.Maria K.: “As a roentgenologist of an emergency hospital I have frequently examined arrestees in the cells of preliminary investigation wards and I know pretty well how they are being interrogated. I saw a man who was strangled, I saw ruptured internal organs – liver, spleen, kidney, stomach, small intestine, urinary bladder, and testicles; I saw fractured bones and craniocerebral injuries, pneumothorax, hemothorax, and sick people who were forced to swallow 10-12 centimeters-long broken-off spoon handles; I saw a sick man who had a spoon handle pushed into his trachea; I saw arrestees being raped by criminals in the cells; and I saw arrestees dying of pulmonary tuberculosis. Small wonder the frequent cases when people plead guilty for offenses they did not really commit.” The inspections of the Commissioner proved that on the average people are held in investigation wards for six months, while courts delay processing their cases for unjustifiably long periods. Every year the time for considering criminal cases is violated in relation to 10,000 people. Of the persons who are detained in custody to date 46% (or 21,000) are within the responsibility of courts; at some investigation wards this category of people exceeds 90%, although 10 years ago they accounted for only 18-20%. Thus the arrestees are deprived of the right to have their cases considered by courts within a reasonable time as well as of the right to release from custody in compliance with Article 9 of the International Covenant on Civil and Political Rights and Item 1, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Above everything else, this is caused by the unjustifiably widespread practice of pretrial detention on formal grounds. Of the 112,600 arrested persons 15,000 (13%) were released from investigation wards in 1998, including every seventh of the arrestees who were meted out punishments other than deprivation of liberty. According to the transitional provisions of the Ukrainian Constitution, there still exists the procedure of arresting and taking people under custody with the sanction of the public prosecutor. The introduction of judicial control over arrestees and the prolongation of terms of custody have not essentially impacted on the practical situation of affairs. Some of the laws, which are already inconsistent with the provisions of the Constitution and international human rights standards, make it possible to set unjustifiably long terms of pretrial detention. Owing to strictly ministerial interests, these terms were increased to a year and a half, from which is excluded the time detainees and their lawyers actually need to become familiar with the materials of the case. The absence of a well-organized system of pretrial investigation violates the terms of detention in relation to tens of thousands of people. Operative legislation does not establish any restrictions whatsoever as to the time of detention, once a case is referred to a court. For this reason the accused and defendants have to wait for months and sometimes for years until a hearing or the completion of judicial examination. Employees of penitentiary institutions are not always impartial in their attitudes toward people under pretrial detention and permit granting privileged conditions to individual categories of arrestees. The Commissioner learned that Captain V.Yelchenko, duty deputy manager of investigation ward No.1, MIA Directorate in Odessa oblast, as well as ensigns Y.Valiaev and S.Filin entered into collusion with arrestee Aidamirov (held criminally liable for attempted murder, illegal manufacture and possession of firearms under articles 19-294 and 222, paragraph 3 of the Criminal Code) and throughout August-October 1998 permitted him to see visitors outside the investigation ward, to communicate with detainees in other cells, and to receive liquor, food products, and the like. In view of such a cynical breach of the Law On Pretrial Detention, the Primorsky district court found the said investigation ward employees guilty of abuse of power and transgression of authority and gave them suspended sentences of three years of deprivation of liberty. In the opinion of the Commissioner for Human Rights the courts, regrettably, rarely effect such non-custodial measures as recognizance not to leave, bail and the like, which would considerably reduce overcrowding in the pretrial detention wards and ease the destructive impact of their conditions and criminal environment on a large number of persons who do not present public danger. To date there exists a real opportunity to apply other deterrents of law to not less than 30% of those kept in custody. This conclusion of the Commissioner was confirmed during the visit of experts of the Council of Europe Legal Committee, who inspected Ukraine’s penitentiary system, as well as by the direct managers of the pretrial institutions. Moreover, 37% of the detainees are actually sentenced to deprivation of liberty. The Commissioner for Human Rights believes that Ukraine’s operative legislation does not clearly reflect the recommendations of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1998 as regards compensation for unlawful arrest and detention. Situation in the penal institutions. The economic difficulties the country is experiencing has had a negative impact on the employment of the inmates and, accordingly, worsened the conditions of their maintenance. On June 6, 198 the Cabinet of Ministers adopted Resolution No.1080 to include penal institutions in the list of facilities whose gas supply it was prohibited to cut off. Practically all penal institutions using gas are in debt for it, because the state funds only 10% of their energy requirements and they cannot independently earn money for their own maintenance, as had been the case previously. When the Commissioner for Human Rights checked on how this CMU resolution was implemented, it proved that the practice of cutting off gas was going on at the penal institutions of Kyiv, Rivne and Lviv oblasts. In penal establishment No.85 alone, 2,000 inmates were left without any hot water and their food had to be prepared with wood in field kitchens. With the advent of the heating season the situation at these institutions became much worse. Following from the provisions of Article 101 of the Ukrainian Constitution and the Law On the Ukrainian Parliament Commissioner for Human Rights, the Commissioner addressed an appeal to the Prime Minister with a proposal to introduce within one month respective amendments to the CMU resolution to have penal institutions supplied with gas and energy resources on a permanent basis. The Commissioner’s response had a positive outcome – the supply of gas was renewed. Because of obsolete machines and unstable funding penal institutions reduced their manufacture of industrial products by almost twofold and lost over 50,000 jobs during the past five years. Of the 127,300 inmates who had to be provided with paid jobs only 59,400, or 46.6%, were employed in 1999. Their average pay was UAH 1.01 per day, while the state’s maintenance of one arrestee comes to UAH 110-120 a month. The absence of wages makes it impossible for the inmates to offset the damages their offenses caused to the state or victims as well as to support their own families and satisfy their simplest requirements in food and other articles of prime necessity. The overall credit indebtedness of the penal institutions’ production facilities went up to UAH 183.2 million in early 1999. Arrears of wages account for a substantial share of the debts, and at some of the institutions it has increased from two to five times. Small wonder that some relatives of the inmates or the latter themselves complain to the Commissioner about the conditions of their maintenance. For instance, Valentina F. of Vinnytsia informed that at Establishment IV-301/39, where her husband serves his term of imprisonment, a 100% performance of a monthly production quota earns an arrestee only UAH 24, of which he gets UA 2.4, or 10% a month, for acquiring food products. The inmates live in dormitory-type premises – from two to three details in each. On the average a detail numbers 100-120 inmates, with only one social worker in charge. The ratio of certified personnel and inmates in Ukraine is 1 to 6, while the European standard is 1 to 2. Such a ratio makes it impossible to exercise permanent control over overcrowded establishments and to carry on proper work to resocialize the inmates. The pressure on the personnel exceeds by several factors scientifically justified standards. The administration of penal institutions in unable to meet the international standards of treatment of convicts, guarantee their safety, and protect the less criminalized inmates from the constant threat of criminal elements, leaders of negative prison groups and the subculture of the prisons’ environment. In 1999 penal institutions registered 436 offenses (429 in 1998). There have been frequent cases of violations of rights of inmates, in particular of pensioners. For example, Mr.Kostiuk and M.Sobokar complained that the cost of the meals they receive at Establishment Yaiu-309/73, where they serve their terms in Zhytomyr oblast, is being withdrawn from their pensions. After the intervention of the Commissioner, these deductions were returned to their personal accounts and administrative action was taken against the chief accountant of the Internal Affairs Directorate in Zhytomyr oblast. Jointly with the State Department for the Execution of Penalties (SDEP) the Commissioner for Human Rights checked on compliance with the convicts’ rights at the penal institutions of Chernihiv oblast. The inspection revealed that the women’s colony and Establishment No.91 in the township of Makoshyne, Mena District, lacked proper amenities, medical services and sanitary conditions of custody and the inmates did not receive minimum rates of fats and sugar. At the Chernihiv women’s colony only 550 inmates (35%) and at Establishment No.91 only 328 inmates (29%) held jobs and could earn additional money for their maintenance. Because of inadequate amenities, medical services, sanitary conditions and nutrition these establishments had a high death rate. In 1998 the Correctional Labor Colony No.91 registered 108 deaths among its inmates and in 1999 the figure was 123. The Commissioner deems it necessary to make the following conclusions and proposals on compliance with human rights at penal institutions. Among the serious flaws in the system of execution of penalties the following should be pointed out:
In this connection the Commissioner holds that the following should be done:
Translated by Anatole Bilenko |
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