On recent responses from the State Department for the Execution of Sentences on what it deems to be unconstructive criticism

The Kharkiv Human Rights Protection Group has long sought to 1) establish open and constructive communication with the State Department for the Execution of Sentences [the Department] and 2) attract public attention to the situation in Ukraine’s penal institutions.  Some interesting movement over the last few weeks might suggest full success.  There are, however, more than a few "buts"

On 25 June an "Official reply to accusations from some human rights organizations" appeared on the Department’s website (http://www.kvs.gov.ua/punish/control/uk/publish/article?art_id=61830&cat_id=45347) . 

            1.  Openness

            The Department would seem to feel aggrieved at criticism, especially over failure to appreciate its openness and willingness to cooperate with civic organizations.

It states: "If the system is closed, then where do you get the numerous reports from penal institutions which are almost every day shown on television, published in the press or on the Internet?.". 

The question is rhetorical and rather wanting in logic, but clearly a sore point, since the same media outlets are mentioned at the beginning: "The media quite often pass on unchecked information about the work of the State Penal Service. Attention from civic and human rights organizations is mainly based on speculation on violation of the rights of prisoners and lack of openness of the system."

The Department does not mention that human rights organizations more often than not state clearly and publicly that they have not been able to check the information.  Not because they were busy watching football, but because a) information seldom leaves the penal institutions by legal channels; b) the Department and / or individual colonies issue no information, denials or inadequate reports; c: human rights organizations have difficulty getting into the colonies; iv) prisoners are often reluctant to speak with representatives of human rights organizations in front of penal staff, or in rooms which they believe to be bugged

These points are clearly in dispute and worth considering in more detail.

Lack of information and access:

The Department’s first response is generally denial, followed by piecemeal information.  "Donetsk Memorial" has actually lodged a civil suit against the Head of the Department to court over failure to provide information about the deployment of an anti-terrorist "spetsnaz" unit in the Izyaslav Penal Colony in January 2007.  This is believed to have been directed at those immediately involved in a protest hunger strike, and some forty prisoners were then immediately taken to other institutions, and their parents had no idea where they were for some time. KHPG has considerable evidence which suggests the version presented by the Department and the penal colony is not correct.

"The Department considers that the critical position of such organizations should not turn into criticism for the sake of it. Unfortunately there have been many examples where some civic institutions have only been interested in negative, as a rule, subjective or twisted information in order to increase their authority by compromising State structures."

Human experience should indicate the difficulties. Yes, human rights organizations would like to nod their heads when told that all is well, and watch football.  However, when there have been many occasions when the truth was not told, when they were prevented or obstructed in receiving information, and when there are still reports of the use of a spetsnaz unit beating up prisoners seven months after the Ministry of Justice effectively made such deployment unlawful, then forget the football.  It would be irresponsible to ignore reports of beatings, ill-treatment and the like coming out of penal institutions.

We would respectfully suggest that greater cooperation would help ensure that the media receive accurate information and that cases where misleading information is checked and found to be unjustified.

The Department mentions considerable experience in cooperation with NGOs.  "The Department views civic and religious organizations specifically as partners in this process and counts on this partnership being aimed first and foremost at maintaining the law in implementing sentences."

Such work is commendable, and it is indeed vital that NGOs have a chance to provide various forms of assistance to prisoners.   Ensuring that they find a way back into society after being released is also extremely important. 

We would however also mention that observance of the law includes full adherence to human rights standards.  Those organizations endeavouring to monitor the situation and ensure that prisoners’ rights are adhered to are very often not given access and answers to questions.  The Department denies this.  With all due respect, we would suggest that they provide evidence of such readiness to answer official requests for information, etc.  This would include the accusation that "Donetsk Memorial" ignores "invitations from the management of the Department to visit any penal institution and see the actual situation".

Arkady Bushchenko, KHPG legal expert and head of the Board of the Ukrainian Helsinki Human Rights Union points out the fundamental difference between having to ask for permission to visit and being able to check the situation in a given penal institution.  

The Department has a rather curious response to KHPG demands.  "It is specifically the Kharkiv Human Rights Protection Group that has repeated insisted on introducing unimpeded visits by human rights defenders to penal colonies. Yet the unprofessional actions of human rights defenders can adversely affect the operational situation in institutions as was seen, for example, during the events at the Temnivska Penal Colony No. 100 on 28 March 2008.  A representative of the Kharkiv Human Rights Protection Group was allowed onto the territory of the colony. Through the person’s inability to conduct a dialogue with the prisoners, three of them inflicted injuries upon themselves in their presence."

Vladimir Azhippo, who worked for many years in the penal service, is scathing about this paragraph (http://www.ukrprison.org.ua/index.php?id=1214894876 ). "What kind of operational situation is it and who are its "creators" that it can be knocked from the impact of one outsider?"  He goes on to point out that the author modestly forbore to mention that the "terminator-human rights defender" was in fact a woman, and that the instruments that the men used to make this demonstrative act of self-injury in front of her had been smuggled into the meeting, i.e. planned well before her "devastating impact".

The Department asserts that "Throughout the year there has been public discussion of a draft "Concept for a comprehensive targeted programme for reforming the State Penal Service between 2008 and 2017.  There were two roundtables, the latter on 24 June 2008. … The Department officially expressed its willingness to cooperate with all interested parties. However no proposals regarding their perception, no alternative to the Concept Strategy was received from human rights defenders Bukalov, Zakharov, or Groisman. 

As Vladimir Azhippo says, this is a serious claim.  He quotes another document, dated 21 June, posted on the Department’s website informing of the planned event, and asking for comments and proposals by 23 June. He points out also that the website has few readers.  Given that the human rights defenders mentioned have for many years complained of being kept away from constructive discussion of change, it would be appropriate for the Department to give examples of written invitations – received a realistic time before the event – which were ignored.

Two days after the Official Answer appeared on the Department’s website, a journalist, Svitlana Vishnevska published an article with the provocative title: "Stryzhavska prisoners want to lodge civil suits … against human rights activists" (http://www.misto.vn.ua/index.php?action=1&k=4377).   While there are a number of interesting similarities in the arguments provided, one point is given a lot of attention by the journalist who spent time talking to the prisoners mentioned in the title, after a report from the Vinnytsa Human Rights Group about two prisoners having allegedly inflicted self-injuries in protest at inhuman treatment.

It is not clear whether in this particular case the report proved correct, however under present circumstances within the Department, as described above, it can be simply impossible to check the information. 

It should also, however, be mentioned that whether or not this be the case this time, where there are radical differences between the number of complaints about conditions and treatment in penal institutions via official channels, and those received unofficially, as well as differences between the statements made by prisoners or their families in privacy, and where in the presence of penal staff, that attention needs to be given to why there are such discrepancies.  The problem with media attention is that it is ephemeral, while the prisoner remains in close proximity to those he complains about.  Unless he can be certain that his complaints will be taken seriously, and not lead to reprisals, he will almost certainly remain silent or say what the penal administration want to hear.

This is not necessarily 100% obvious to all journalists, nor unfortunately to their readers. It is however entirely clear to the Department and to the international bodies monitoring Ukraine’s adherence to its international commitments. 

In the Department’s "official response", it states that: (some human rights organizations) "are deliberately stirring up misunderstandings between the Department and the Ministry of Justice regarding the procedure for directing and coordinating their work."

It is baffling who the Department is trying to convince. It was a condition of Ukraine’s membership of the Council of Europe in 1995 that the penal system should be brought under the jurisdiction of the Ministry of Justice.   The Department is jealously holding to its autonomous structure, and attempting to gain support for such efforts.  They will not succeed, and cannot, since they are in direct breach of Ukraine’s commitments, as has been noted by every report from international structures inspecting the Department’s institutions.

It is vital that the public are aware of this, and of the fact that the human rights organizations which the Department accuses of negativity, of unconstructive "interference", are acting, as they must, to ensure that Ukraine adheres to its intentional commitments, and that it develops the national mechanisms for preventing human rights abuses in all places of deprivation of liberty.  If they don’t, international inspectors will. 

Halya Coynash