Capacity of the Penitentiary System of Ukraine
The penitentiary system of Ukraine comprises 182 institutions, including 29 located in the area of Donetsk and Luhansk regions outside of Ukraine’s control and 5 in the Crimean Peninsula, and 7 facilities in other areas under Russian control[576]. There are no convicts held in 39 facilities (of which 22 are correctional colonies) due to the optimisation of the system. As of 1 January 2023, there were 42,726 detainees in penitentiary institutions and remand facilities, including 27,179 individuals in 61 active penitentiary institutions, out of which 20,978 people were in medium and maximum security correctional colonies[577].
Discussions have been ongoing for years about the limited capacity of the detention facilities. The length of court proceedings, repeated application of preventive measures in the form of detention, and the lack of resources needed to renovate the penal system's facilities lead to overcrowding in both temporary detention facilities (remand centres) and prisons[578]. Since 2017, the system has been trying to optimise existing penal institutions by inactivating certain places of detention and relocating convicts to facilities with better conditions[579]. At the same time, the general conditions of detention in such places remain the subject of individual applications to the European Court of Human Rights, and its decisions allege systemic violations of human rights guarantees[580].
Following the full-scale invasion of Ukraine by the Russian Federation, the available penitentiary facilities were reassessed. These institutions were supposed to be used to ensure the detention of Russian military personnel, both those who were detained as prisoners of war and those who were later convicted by the Ukrainian courts. Thus, 51 detention facilities and 1 camp for the detention of prisoners of war were created from the available resources of the penitentiary system at the expense of existing places of detention[581]. The detained prisoners are isolated in these areas, and their regime of detention includes compulsory labour. According to the Ukrainian Minister of Justice, these facilities comply with the requirements of international humanitarian laws, which define guarantees for prisoners of war[582].
The greatest challenges in practice began to arise when captured Russian servicemen started to be prosecuted by national authorities. At the stage of investigation, they are not subject to preventive measures in accordance with the requirements of the CPCU. This approach is based on the idea that there is no risk of their absconding from justice, as they are already in places of deprivation of liberty within the meaning of IHL.
Some of the POW detention facilities continue to operate as remand centres, where Russian military personnel are held separately from other detainees, but within the same facility. This approach further complicates the normal routine of the facility: prisoners have to be additionally guarded, as other detainees may pose a threat to their lives and health. In addition, Russian prisoners of war have limited access to communication with the outside world. Any contact with the detainees is carried out only with the permission of the investigator in the criminal proceedings against them. And given the context of the armed conflict and their Russian citizenship, such persons are ultimately able to communicate only with their defence counsel from the free legal aid system which could potentially be classified as a violation of the Geneva Conventions (III).
A distinct legal status in criminal proceedings is provided for convicted persons - an accused whose court verdict of guilty has entered into force[583]. The type of institution where an individual is placed is determined by the sentence. Considering that the penalty for grave international crimes under the CCU is either a fixed-term imprisonment or life imprisonment, the relevant facilities for the execution of such sentences are general correctional colonies[584].
Official statistics do not specify how many inmates in penitentiary institutions were convicted of grave international crimes among the total number of prisoners. It is also impossible to establish how many Russian prisoners of war have actually been transferred to serve their sentences after their conviction (as of 01 January 2024, a total of 73 sentences were passed under Article 438 of the Criminal Code of Ukraine)[585]. Given the processes of exchanging such persons for captured Ukrainian military personnel, it remains an open question how long they are held in detention facilities or how quickly they are repatriated to the RF as part of prisoner swap[586]. Such information is difficult to verify in practice as access to court decisions under Article 438 of the CCU in the register of court decisions is limited, and information on decisions on the release of persons from serving their sentences and pardons is classified.
Based on the statistics of the registered grave international crimes in Ukraine, the number of potential convicted persons who could be placed to serve their sentences in the relevant facilities may exceed the number of persons currently held in penal penitentiary institutions. That is assuming that these individuals will be prosecuted and serve their sentences in Ukraine in all proceedings initiated at the national level. These demands do not correspond to the existing infrastructure of the system, particularly regarding the number of correctional colonies, and are not factored into the calculation of budget allocations needed for the development of the penal system[587].
Claims that the national justice system is able to handle all registered proceedings for grave international crimes overlook among other things the factor of execution of the sentences. There may not be enough space in the penitentiary system for the anticipated number of convicts. On the one hand, most trials are currently held in absentia, which so far removes the problem of how to execute a court sentence in practice. On the other hand, in anticipation of the enforcement of such verdicts in the future and potential extradition of convicts from other states, the penitentiary system must be prepared to accommodate these individuals, ensuring that the conditions will not violate prisoners’ human rights.
