Prison inspections in the light of further penitentiary reform in Ukraine - Статья

According to the national legislation, the pillars of the contemporary Ukrainian “legality providing system” are: Prosecution Service of Ukraine; different departments of internal control of the State Penitentiary Service of Ukraine (including the Department of Internal Audit, the Department of Security, the Department of Control and Regime and other Departments of the State Penitentiary Service of Ukraine); supervisory committees; the Ukrainian Parliament Commissioner for Human Rights (the Ombudsman); the Ministry of Justice of Ukraine, its bodies and other actors established by the Ministry of Justice of Ukraine (the Committee on State Prison Policy of the Ministry of Justice of Ukraine, mobile groups of the Committee on State Prison Policy of the Ministry of Justice of Ukraine). 1. Prosecution Service Let us start with the Prosecution Service, which, according to the old-fashioned Soviet tradition, occupies a special place within the system of control over ‘legality’ in the Ukrainian prison establishments. One of the Prosecution Service’s functions is ‘supervision over the legality during execution of the judicial decisions on criminal cases’. This function receives a lot of criticism from many actors, including international and European prison experts. For example, in 1996, when the prison system was subordinated to the Ministry of Interior of Ukraine (so called the state Department for Execution of Sentences), the European prison experts conducted the first full review of the Ukrainian prison system. Having analyzed the Ukrainian prison system, the European prison experts strongly recommended abolishing the supervisory function of Prosecution Service of Ukraine and delegating this function to the special governmental inspection. Their recommendations were the next: “As soon as resources are available, Ukraine should create the inspection body which will be coordinated with the central level. This body should be independent and have the regional groups including the prison system experienced workers, representatives of other civil society organizations, including NGOs. Then Ukrainian government should abolish the inspection functions of prosecutors”. As we could see, these recommendations have not been still implemented yet. At the same time, in the light of future constitutional reforms in Ukraine such recommendations become more and more topical. During my visits to the pilot prisons with other experts of the Council of Europe within the Project “Further Support for the Penitentiary Reform in Ukraine”, I asked different prison officers a standard question concerning the effectiveness, efficiency and necessity of the prosecutorial supervision. As usual, I received negative or very negative evaluation of the prosecutors’ activities in prisons from the points of effectiveness an efficiency. Complains of prison officers were concerned mostly with too formalistic style of the prosecutorial inspections and with “over-control” style of the prosecutorial supervision. Unfortunately, many Ukrainian prison officers share such a point of view. Very often prosecutorial inspections instead of real improving situation in prisons lead to punishing a particular prison officer or a group of prison officers even for minor violations of the Criminal-Executive Code and Internal Rules for Criminal-Executive Establishments, even taking into account not sufficient grounds for these disciplinary punishments. Generally speaking, prosecutorial supervision has many disadvantages which in the Ukrainian realities: focused purely on ‘legality’ and formal aspects of the prison life; concerned mostly with individual complaints: aimed at processes, not at “standards”, “best practices”, “expectations” and “results”; does not deal with policies and strategies: does not reflects “four tests of prison health”. On the other hand, today the Prosecution Service of Ukraine wants to leave this piece of responsibility by its own initiative. The Prosecution Service wants to be involved more in pure criminal process issues, not in issues of execution of the courts’ decisions. A special note should be made concerning the Prosecution Service’s functions in the light of changes to the Ukrainian Constitution. According to draft changes to the Constitution of Ukraine, the Prosecution Service will not have such a function of the supervision over legality in penitentiary institutions. It is expected that the public prosecutor’s office shall function with the powers of: 1) public prosecution in the court; 2) organizing and procedurally directing during pre-trial investigation, deciding other matters in criminal proceedings in accordance with the law, supervising undercover operations of law enforcement agencies; 3) representing interests of the State in the court in exceptional cases and under procedure prescribed by law. Therefore, we can expect that the function of supervision over penitentiary establishments will be abolished according to the Europea