On 02 May 2024, the Ombudsperson’s Office presented a critical document – the Special Report “On the Situation with the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Ukraine in 2023”.

The substantive document contains an analysis of numerous cases of gross human rights violations in places of detention. The report is quite critical, but it is the reports of independent institutions that are useful in ensuring the observance of human rights in penitentiaries and other places of detention.

The report deserves a lot of attention. It should be read by every judge, prosecutor, and investigator who, within the limits of their powers, as they sometimes think, are trying their best to send a person to prison. That is why, in my opinion, the red thread in the report is a call for maximum decarceration.

Thus, as noted in the report, as of 31 December 2023, there were 44024 people held in 148 prisons. At the same time, in 2022, this figure was 42726 people.

This is a critical negative indicator that the great achievements in reducing prison suffering can be destroyed under the slogans of martial law and “increased responsibility” of Ukrainian citizens during the war.

Torture is not a simple sum of ‘acts’ and ‘incidents’. Torture is a policy. As a rule, it is a non-subjective policy, but sometimes it is a subjective one, although this does not exclude the subjects of the torture policy from remaining in the shadows.

The international community has been trying to influence the problem of torture and other forms of ill-treatment for several decades, adopting various legal acts on combating torture and creating relevant institutions that can perform these functions”.

In fact, it is said that the policy of combating torture should be constantly improved.

Some numbers.

According to the Ministry of Justice of Ukraine, there are 182 prisons in the structure of the SPS of Ukraine. At the same time, as of 31.12.2023 they are not functioning:

• 29 prisons located in the territories of Donetsk and Luhansk regions, temporarily uncontrolled by the Government of Ukraine since 2014;
• 5 prisons on the TOT of the AR of Crimea;
• 7 prisons located on the territories temporarily uncontrolled by the government of Ukraine since 24.02.2022;
• in 9 prisons, convicts and prisoners are not held due to the evacuation and the fact that they are in the de-occupied territories of Kherson region;
• 2 prisons was re-profiled into a camp for the detention of prisoners of war;
• 1 juvenile prison

There are no inmates in 41 prisons due to the optimisation of their activities.

The report criticises the mistakes made in reforming Ukraine’s penitentiary system:

Instead, the unprofessional reform of the penal system, namely the wrong way of optimising and preserving prisons, leads to the fact that almost all penitentiary institutions still do not comply with the space requirements for detainees and convicts.

It should be noted that according to the World Prison Brief, as of January 2022, the occupancy rate of penitentiary institutions was less than 55%. Therefore, an impartial observer may ask: what kind of overcrowding can there be if penitentiary institutions are half empty? We believe that the answer lies in management, not in the actual “square metres“.

The report also highlights the problem of informal hierarchies and prison subculture. The report contains references to the critical judgment of the ECHR in the case of S.P. and Others v. Russia (application no. 36463/11).

A systemic problem in the activities of prisons in Ukraine remains the existence of cases of discrimination, segregation and stigmatisation of prisoners and convicts belonging to a particularly vulnerable category. Such persons are subjected to humiliating practices and ill-treatment in everyday life and are at increased risk of inter-prisoner violence. Cases of physical and psychological violence against newly arrived convicts are also a systemic problem in penitentiary institutions.

Perhaps the terminology should have been stricter, as informal hierarchies and prison subculture cannot be narrowed down to “discrimination, segregation and stigmatisation“. Moreover, even the current Strategy for the Reform of the Penitentiary System explicitly notes the influence of prison subculture as a systemic problem of the national penitentiary system.

It is interesting that the problem of creating informal hierarchies extends not only to penitentiary institutions, but also to psychiatric institutions, and this cannot go unnoticed:

In the municipal enterprise “Dnipropetrovs’k Multidisciplinary Clinical Hospital for Psychiatric Care of Dnipropetrovs’k Regional State Administration”, during a visit to ward 6 for compulsory medical measures with enhanced supervision, the NPM group found a list with the names of patients (“ward elders”) on the information stand. During communication with patients and medical staff, it was established that each ward has a patient who is responsible for maintaining discipline and order in the wards. This indicates the practice of segregation and discrimination among patients, which leads to a violation of the right of patients to respectful and humane treatment, excluding humiliation of human honour and dignity.

As for the material conditions of detention of prisoners, the Ombudsman’s report contains a disappointing conclusion:

As a result of the visits, it was found that most penitentiary institutions are characterised by violations of the right to privacy, access to fresh air and drinking water, unsatisfactory sanitary and hygienic and material conditions, non-compliance with temperature and lighting requirements in the premises where the detainees live.

Unfortunately, one of the saddest symbols of the state of affairs may be a quote from the report:

In one of the residential sections of the said institution, water was dripping from the ceiling. The convicts used their own basins to collect it and expressed hope that with the onset of warm, summer weather the situation would change by itself.

When we discuss the reform of the prison system, we can talk for a long time about new horizons of reform, which, however, break down into basic things that should not be the subject of discussion at all.

For example, we are talking about the banal issue of access to drinking water, which, as it turns out, is far from banal:

To consume water, the convicts use homemade filters made of scrap materials and defend it, but even after that, the water contains a significant amount of sediment.

I must remind you that the issue of access to drinking water is not only a matter of access to water in the narrow sense of the word. It is a prerequisite for building informal relationships, which the CPT has repeatedly pointed out:

The process [of water supply] is managed and paid for by the leaders of the prison hierarchy (from the ‘collective fund’), who apparently also control prisoners’ access to drinking water. Indeed, many of the prisoners with whom the delegation spoke complained of a lack of drinking water. This is unacceptable: such a basic thing as drinking water should be provided to prisoners by the prison administration free of charge (Report on the visit to Moldova carried out by the CPT from 28 January to 7 February 2020, Para 68, P. 34).

The issue raised by the Ombudsperson is very relevant, namely the storage of non-standard items in police stations:

The CPT has repeatedly noted that the discovery of suspicious objects such as wooden truncheons, mop handles, baseball bats, metal rods, heavy pieces of cable or replica guns or knives in police premises has repeatedly supported the conclusion that persons in custody were intimidated and/or beaten.

Indeed, the CPT has consistently emphasised:

The items in question give rise to speculation about police misconduct, as they are a potential source of danger to both staff and detainees. To dispel speculation about police misconduct and to eliminate potential sources of danger to both staff and detainees, the Committee recommends that any non-standard items be removed immediately from all police premises where persons may be held or interrogated (Report on the visit to Cyprus carried out by the CPT from 23 September to 1 October 2013, Para 13, P. 11).

To dispel speculation about police misconduct and to eliminate potential sources of danger to staff and detainees, any non-standard items such as car batteries, metal pliers, screwdrivers, metal bars and black hoods should be immediately removed from all police premises where persons may be held or interrogated (Report on the visit to Montenegro carried out by the CPT from 9 to 16 October 2017, Para 15, P. 13).

Any non-standard items seized during criminal investigations should be entered into a separate register, duly marked (indicating the case to which they relate) and stored in a special storage facility (Report on the ad hoc visit to Bosnia and Herzegovina carried out by the CPT from 17 to 27 September 2021. Para 45, P. 29).

In general, we can say that the report requires attention and obviously requires urgent measures to coordinate the authorities in the prevention of torture and other forms of ill-treatment.