CPT findings and ECtHR judgments on Prison Complaints Mechanisms in Ukraine E. Svanidze

1. CPT findings and ECtHR judgments on Prison Complaints Mechanisms in Ukraine E. Svanidze 7 July 2016 Kiev Erik Svanidze

2. Further Support for the Penitentiary Reformin Ukraine PPrison Complaints Overall CPT Standard , 2nd Annual Report 54. Prisoners should have avenues of complaint open to them both within and outside the context of the prison system, including the possibility to have confidential access to an appropriate authority. The CPT attaches particular importance to regular visits to each prison establishment by an independent body (eg. a Board of visitors or supervisory judge) possessing powers to hear (and if necessary take action upon) complaints from prisoners and to inspect the establishment's premises. Erik Svanidze

3. Further Support for the Penitentiary Reformin Ukraine PInitial Findings of the CPT 1998, 2000 and 2002 Visit REPORTS: • Confidentiality and efficiency of communication with designated outside bodies • specific technical arrangements Complaints by remand and sentenced prisoners to the competent national authorities, including the prosecutor and the Ombudsman, were forwarded unsealed to a specific department of the establishment, which registered them. Erik Svanidze

4. Further Support for the Penitentiary Reformin Ukraine PInitial Findings of the CPT The written responses to inmates complaints were also registered. Prisoners expressed distrust of the present system and reluctance to avail themselves of their right to make complaints, for fear of possible reprisals. RECCOMENDATION: to ensure confidential access by taking the practical measures, namely: • locked complaints boxes accessible to prisoners • opened only by specially designated persons in confidence • providing envelopes Erik Svanidze

5. Further Support for the Penitentiary Reformin Ukraine PRecent Findings of the CPT 2009 Visit REPORT omitted technicalities, but addressed: • confidentiality of written correspondence (vetted by the prison administration or complained of undue delays in the dispatching of their letters) • Intimidation and persecution 2012 REPORT emphasised lack of progress: • no confidentiality of medical screening and records • pressure on medical staff (subordination) • intimidation Erik Svanidze

6. Further Support for the Penitentiary Reformin Ukraine PRecent Findings of the CPT 2013&2014Visit REPORTs: intimidation and persecution of inmates of specific colonies and measures taken by the authorities • Order No. 178/5 February 2015 on policies and technicalities (measures against intimidation and preventing from complaints, disciplinary violation, including interference in medical screening, special arrangements etc.) = only ill-treatment • Criminal and disciplinary procedures • Telephones and internet access • Information / awareness raising (Kharkiv region) Erik Svanidze

7. Further Support for the Penitentiary Reformin Ukraine PECtHR Case-Law and Judgments against Ukraine More than 20 judgmentsrelated to Article 13 of the ECHR with respect to the efficiency of domestic remedies for addressing violations of the Convention attributable to the Penitentiary system: • material conditions (Article 3) • health care (Article 3) • correspondence (Article 8) • family life (Article 8) Substantial and procedural obligations = more judgments Kverzinetc. Erik Svanidze

8. Further Support for the Penitentiary Reformin Ukraine PECtHR Case-Law and Judgments against Ukraine Conditions of detention Melnik v. Ukraine 2006 Remedy should provide: - direct and timely redress (and not merely an indirect protection of the rights guaranteed in Article 3) - preventive and compensatory Prosecutors: -their status under domestic law does not offer adequate safeguards for an independent and impartial review of the applicant's complaints - do not provide preventive or compensatory redress Erik Svanidze

9. Further Support for the Penitentiary Reformin Ukraine PECtHR Case-Law and Judgments against Ukraine Medical treatment Petukhov v. Ukraine 2010 CorrespondenceDavydov and others v. Ukraine2010 Family life (distribution) Vintmanv. Ukraine2014 ANY OTHER ISSUE = Disciplinary punishment etc. Same basics Neither prosecutors nor hierarchical avenues Courts: no steady and predictable practice under the domestic case-law to show that civil and/or administrative proceedings would have stood any prospect of success Erik Svanidze

10. Recommendations as to improvement of the Prison Complaints Mechanism in Ukraine E. Svanidze 7 July 2016 Kiev Erik Svanidze

11. Further Support for the Penitentiary Reformin Ukraine PComments on Legislation and Related Recommendations • Decree of 18 May 2016 the Cabinet of Ministers + Constitutional Changes on Prosecution • NO harmonized and efficient Prison complaints mechanism • One of the primary goals for the reform of the Penitentiary System in Ukraine • Design a complaints mechanism as an integral component of legislative and institutional setup Erik Svanidze

12. Further Support for the Penitentiary Reformin Ukraine PComments on Legislation and Related Recommendations Law On Public Appeals = not appropriate Law of Preliminary Detention and Criminal Executive Code respectively - Article 9 and Article 8 provide for the general right to complain, but the latter is furnished with an unnecessarily limited provision as to the format of the complaints: two copies etc. Article 13 and Article 113 do not envisage confidential communications with superior prison authorities Erik Svanidze

13. Further Support for the Penitentiary Reformin Ukraine PComments on Legislation and Related Recommendations Law of Preliminary Detention and Criminal Executive Code respectively do not: - extend to lawyers engaged for handling disciplinary or other procedures - elaborate on practical (technical arrangements) measures - provide for a special regime for access to telephones and internet for the purposes of submitting complaints Erik Svanidze

14. Further Support for the Penitentiary Reformin Ukraine PComments on Legislation and Related Recommendations Law of Preliminary Detention and Criminal Executive Code respectively do not: - suggest clear avenues for challenging disciplinary punishments beyound limited hierarchical channels / a possibility to appeal them before courts Deign a prison complaints mechanism in line with new institutional set up and status of the penitentiary system + introduce a coherent, harmonized set of provisions (separate law) on effective composite (internal and external) system Erik Svanidze

15. Further Support for the Penitentiary Reformin Ukraine PComments on Secondary Legislation and Related Recommendations Internal Rules of Investigative Isolators N460/5 18.03.2013 and Establishments N2186/5 29.12.2014 mainly just recapitulate the primary legislation. Additional provisions on privileged correspondence specify: - handed over in sealed envelopes, but submitting it only via prison officials - no confirmation of it being sent - no other options/technical arrangements Erik Svanidze

16. Further Support for the Penitentiary Reformin Ukraine PComments on Secondary Legislation and Related Recommendations Internal Rules are rigid as to complaints to administration (no option to the routine open submission, registration etc.). Regulations on consideration of citizens’ applications (N 475/5 of 23.07.2013) are more detailed but formalistic. Regulations on avenues for complaining against specific issues and decisions (N222/5 of 10.02.2014 on Statute of appeals commissions on distribution and allocation) do not specify the possibility to appeal before courts. Order 178/5 February 2015 – ill-treatment Erik Svanidze

17. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations Institutional design: • external and internal inspections = complaints avenues/procedures • external = criteria of independence + • substantial distribution of jurisdiction (clear criteria and algorythm) Penitentiary / Prison Judiciary: court + visits Erik Svanidze

18. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations Multiplicity of channels / options for triggering relevant mechanisms: • open oral appeals • open submission and registration of written complaints through administration + confirmation • confidential written communication with designated internal and external institutions + penitentiary hierarchy / inspection / MoJ, investigative and other competent authorities Erik Svanidze

19. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations • Multiplicity of channels / options for triggering relevant mechanisms: • confidential communication with the same set of institutions and bodies on special telephone (hot-line) • internet-based technologies also supported by readily available equipment and infrastructure (premises) • special technical arrangements for maintaining written correspondence and using electronic channels MINIMISE PRESSRE AND AND DISSUASIVE FACTORS Erik Svanidze

20. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations • Standards concerning effective investigation of ill-treatment and other serious human rights violations (Article 214 CPC) • Diversity and intensity of notification, explanation and overall awareness raising framework • Mediation tools (for relevant issues/disputes) • Free legal aid entitlements and access to a lawyer (not only CPC): information and regime Erik Svanidze

21. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations • Vulnerability: - extended deadlines + grounds for their extension or lifting them - protection measures • Straightforward and effective (judicial) remedies and contribute to development of relevant practice Erik Svanidze

22. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations • Measures addressing the dominating negative perceptions and attitudes (support to the system) • performance indicators • professional training modules and schemes; • disciplinary transgressions • criminal investigation of and prosecution • (IT-based) processing of complaints and data collection, profound statistics and analytical work; Erik Svanidze

23. Further Support for the Penitentiary Reformin Ukraine PComments on Operation of the System andfurther Recommendations • Measures addressing the dominating negative perceptions and attitudes (support to the system) • active commissions and other forms of public control • advancement of powers and practices of the National Preventive Mechanism and other monitoring arrangements; • dual prison inspection system prioritize and focus on functioning of the complaints system. Erik Svanidze