Dmytro Yagunov: Ukraine needs the Law on Prison Inspections

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The 1996 report of the Council of Europe experts emphasised the urgent need to establish independent prison inspections and, at the same time, to eliminate the inspection functions of prosecutors[1].

In 2003, this issue was again emphasised: “We have had useful and constructive meetings with several motivated regional prosecutors who have given us comprehensive and interesting accounts of their systems of supervision, and we are very grateful for this. However, we remain convinced that prosecutorial inspection of the prison service is inappropriate”[2].

Following the amendments to the Constitution of Ukraine in 2016, it was for the first time that the elimination of traditional “prison” prosecutorial supervision and the introduction of relevant prison inspections were envisaged, which coincided with the period of centralised theatrical modulation. Pursuant to Article 131-1 of the Constitution of Ukraine, the Prosecutor’s Office does not have the function of penitentiary supervision, according to the constitutional prescriptions.

However, paragraph 9 of the Transitional Provisions provides that the Prosecutor’s Office shall continue to fulfil the function of penitentiary supervision under the current law until the entry into force of the law on the establishment of a dual system of regular penitentiary inspections.

As a result, today we have a unique situation with a negative context, when for almost seven years the constitutional provisions have not been implemented, and the actual inspection of prisons is carried out by a state body not authorised to do so by the Constitution.

A working group under the Subcommittee on Reforming the Penitentiary System, Activities of Penitentiary and Probation Bodies of the Verkhovna Rada Committee on Legislative Support of Law Enforcement has started work on the draft law “On the Dual System of Regular Penitentiary Inspections”. On September 2, 2021, the draft law  (№ 5884) was submitted by the Cabinet of Ministers to the Parliament of Ukraine[3].

The discussion of the draft law on penitentiary inspections is ongoing. The draft law № 5884 itself contains a number of possible risks. It seems that its developers decided to take the simplest way – just to transfer penitentiary supervision from the prosecutor’s office to another body.

Nevertheless, the idea of penitentiary inspections has fundamental differences from prosecutor’s inspections. By transferring the functions of supervision under the scenario proposed by the draft law, there is a great risk of creating an entity with powers that even the Soviet-model prosecutor’s office would envy. In fact, the supervisory function of the prosecutor’s office is only transferred to another body, i.e. only the subject of authority changes[4].

At the same time, the philosophy behind the amendments to the Constitution of Ukraine was not so much to free the prosecutor’s office from the function of penitentiary supervision, but rather to create an efficient inspection system, the activities of which would be aimed at increasing the transparency of the penitentiary system and the efficiency of state management of it[5].

The draft law № 5884 indicates the realisation of a hidden concept of continuation of traditional prosecutor’s supervision, but by a wider range of subjects, as indicated by “ensuring control over compliance with the law” as the basic task of internal inspections.

The definition of penitentiary inspections, the subject of which is control, is quite in the spirit of the Soviet general supervision of the prosecutor’s office over all legal relations in the state. It is also worrying that the penitentiary inspectorates are assigned too broad a range of responsibilities to ensure oversight “over the observance of the rights and freedoms of citizens”{.

Moreover, the involvement of an indeterminate number of actors in this function calls into question the effectiveness of its performance and proper reporting to society. In general, in assessing the concept of the law, it should be emphasised that it has a punitive-repressive orientation and differs little from the concept of prosecutorial oversight, which in turn is intended to replace the penitentiary inspectorates. Penitentiary inspections are primarily a tool to prevent human rights violations through the improvement of penitentiary policy.

At the same time, the concept of the draft law moulds the model of penitentiary inspections as an instrument of punitive retrospective response to human rights violations and quasi-investigations, as a result of which penitentiary inspections acquire clear characteristics of law enforcement agencies. Without in any way questioning the importance of the work of civil society institutions in monitoring places of detention, it should be emphasised that international standards require that it is a state body or bodies that should be established for independent monitoring needs. In no case should prison inspections be conducted with the aim of ‘identifying and stigmatising’ agencies/organisations, as this leads to demotivating staff or destroying trust in the justice system. Inspections should be used as a tool to improve the system and act as an independent, unbiased professional “critical friend”. In no case should inspections be used to ‘identify and stigmatise’ individual officials, but to direct the institutions concerned to maintain high standards of treatment of prisoners and other persons under the control of the state.

[1] Yagunov, D. (2015). Problems and perspectives of establishing prison inspections in Ukraine. European Political and Law Discourse. 2. 6. P.152-156. (in Ukrainian); Yagunov, D. (2015). Prison inspections in the light of further penitentiary reform in Ukraine. European Political and Law Discourse. 2. 5. P.156-160. (in Ukrainian).

[2] Council of Europe (2003). Re-assessment of the Needs of the Prison system of Ukraine. Report of the Council of Europe expert mission to Ukraine in April 2003. Strasbourg, 2003

[3] The Accounting Chamber (2021).  Report on the results of the audit of the effectiveness of the use of state budget funds allocated to the Ministry of Justice of Ukraine for the execution of sentences by the institutions and bodies of the State Criminal Executive Service of Ukraine, as well as the use and disposal of state property, material and other assets owned by the state that have financial implications for the state budget. Approved by the Decision of the Accounting Chamber dated 12.10.2021 No. 24-3. Kyiv, 2021

[4] Yagunov, D., Chernousov, A. (2021). Instead of Prosecutorial Supervision, Another Law Enforcement Monster? Mirror of the Week. June 28, 2021.

[5] Yagunov, D., Chernousov, A. (2021). Instead of Prosecutorial Supervision, Another Law Enforcement Monster? Mirror of the Week. June 28, 2021.

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