Aleksandr Bukalov is the Chairman of the Board of Donetsk Memorial, the human rights advocacy organization, and expert in the protection of detainee rights. In his interview with The Ukrainian Week, Mr. Bukalov comments on how close Ukrainian penitentiary practice is to European standards and ways to improve the current situation.
U.W.: Numerous CoE documents note that the way Ukrainian penitentiary services operate has barely changed since soviet times. You have been monitoring the penal system for 15 years in Ukraine. How close are the comments of international experts to reality?
The Council of Europe provides that every convicted person is entitled to an area of 4 sq m. In Ukraine, though, it’s often less than 3 sq m. The Verkhovna Rada is about to pass a law that contains this European standard. But I think that in practice, it will be implemented much later.
European norms set standards on the communication of prisoners with the outside world and how many telephone calls they are allowed to make. This varies from prison to prison. I would not say that they are living in appalling conditions, just very humble ones. The penitentiary system receives only half of the funding planned for it. I think health care is possibly the biggest challenge in prisons.
U.W.: Yulia Tymoshenko’s lawyers insist that the former premier is not getting the medical aid she needs, which is a violation of European standards of imprisonment. Is this problem common for Ukrainian prisons?
Medical services in prisons, including pre-trial detention centers, is one of the most urgent problems in Ukraine. Being underfinanced, they often lack medicines. Moreover, doctors depend on the penitentiary system administration therefore prisoners often do not get the medical attention they need. Not only is there no medicine, but no attention is paid and necessary examinations are not conducted, because there is no funding to bring the sick to hospitals. Very often, people with health problems are actually not treated at all, while doctors mostly report that their “state of health allows the person to remain prison”. Reports like this sometimes give no information on actual illnesses.
The same thing applies to Yulia Tymoshenko. Reportedly, her health allows her to stay behind bars. But nobody really knows the criteria for this determination. This conclusion is based on the doctor’s subjective opinion rather than medical grounds. Where is the limit? Does this mean that all but the unconscious can be kept behind bars? Verifying these conclusions is next to impossible because they are not objective.
Western countries care much more about people’s health regardless of the crimes they commit. In Ukraine, a person that has been convicted is not worthy of being cared for. And this is the mindset, rather than legislation.
U.W.: You publish annual reports on the protection of prisoners’ rights in Ukraine. Who are the recipients of this monitoring and what criteria do you use to research the situation?
Donetsk Memorial studies specific problems in certain locations and within specific time periods and conducts overall monitoring. The latter includes what we learn from the media, people and authorities about the protection of prisoners’ rights. We recently published yet another statistical report on the overall situation, not just violations. We also look into how prisons are funded, prisoners’ access to communication and the psychological conditions they live in. Some things don’t really qualify as torture but they are clearly violations of prisoners’ rights. First and foremost, we provide recommendations to the Ukrainian penal system and the Verkhovna Rada, we also apply to the president. In fact, we cover a wide target audience. Ukrainian citizens should also know how human rights are protected in prisons.
U.W.: MP Oleh Bilorus told The Ukrainian Week that over 250,000 people are in prison and their number is growing. Have you noticed this trend?
This statistic is not quite accurate. According to the State Penal Service, there were 157,866 people in prison as of 1 July 2011. However, their number is growing. It has increased by 2.5% over the past six months compared to the 3.9%-rise of the number of people who have been convicted. This means that the number of those kept in pre-trial detention centers for prevention purposes until the verdict is made has decreased somewhat.
U.W.: Donetsk Memorial of which you are a co-founder is a partner of Amnesty International. What is the form of your cooperation?
Unfortunately, Amnesty International is no longer as influential as it was, but we work closely with the Council of Europe. We’ve held a dozen seminars for the staff of penal institutions with experts who told them about European standards.
Actually, the Council of Europe demands that Ukraine meets its commitments. “Why is Europe telling us what to do? We’ll deal with everything on our own,” some complain, but that’s ignorance. Ukraine has undertaken certain commitments. It has fulfilled some but ignored others. This could be understood over a period of three or four years because there can be difficulties. But Ukraine has already been in the CoE for 16 years! Strasburg is calling on authorities to apply more civilized standards in prisons. Cooperation with international institutions improves the Ukrainian penal system.
U.W.: What is your opinion on the CoE’s demand to include new provisions in criminal legislation that would clearly ban preventive detention for alleged administrative violations?
I’m not sure the current parliament will be able to pass the necessary amendments. But I see the key reason lies in the practice applied rather than bad legislation. Sometimes, legislation is blatantly violated in practice. Changing the law rather than practice will have no impact.
It takes political will on part of the government, judges and investigators. They shouldn’t use preventive measures so often. Effective laws allow them to do so. The problem is not the law but the behavior of the people who enforce it.
A lot of provisions in Ukraine require one thing in some acts and opposite things in others. Whatever the case, one or the other will be violated.
For instance, the Constitution guarantees everyone’s right to parenthood. However, the Criminal Penal Code bans men sentenced to life imprisonment from the long visits from their wives that other categories of prisoners are entitled to. Women whose husbands are sentenced to life imprisonment have no opportunity to exercise their right to motherhood.
U.W.: In its Draft Resolution on Ukraine, the PACE Monitoring Committee insists that Ukraine should summon the Constitutional Assembly to amend the effective Constitution. Do you think this is a timely proposal?
I took part in all forums of the Civil Assembly of Ukraine where this idea was hotly debated. I believe that approving a new Constitution through Constitutional Assembly is a pretty good mechanism. It truly needs to be revised significantly to remove declarative norms and set forth mechanisms to guarantee the rule of law. But, I don’t think society has accumulated sufficient creative and intellectual resources at this point to delegate enough members to the Constitutional Assembly who are capable of drafting a new Constitution. People don’t realize how important that is. Only a few understand, while the candidates are elected by everyone. The public is not adequately informed on this issue. Moreover, I’m not sure the government will go for a fair and transparent election of the Assembly.