Weekly analysis for 10 — 16 February

The Government Proposes to Abolish Criminal Responsibility for Malicious Disobedience with Demands of the Administration of Penitentiary Institutions

Event

The Cabinet of Ministers of Ukraine has submitted to Parliament draft Law № 15003“On Amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Criminal Enforcement Code of Ukraine concerning the humanization of legislation in the area of execution of criminal penalties.”

The Cabinet of Ministers of Ukraine has submitted to Parliament the draft Law of Ukraine № 15003 “On Amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Criminal Enforcement Code of Ukraine concerning the humanization of legislation in the area of execution of criminal penalties”.

The draft law proposes repealing Article 391 of the Criminal Code of Ukraine, which currently establishes criminal responsibility for convicted persons who maliciously disobey lawful demands of the administrations of penitentiary institution. Instead, such conduct would be reclassified as a disciplinary offense under Article 133 of the Criminal Enforcement Code of Ukraine.

Under the proposed amendments, committing malicious disobedience would result in the convict’s placement in a cell-type facility within a maximum-security correctional colony (sector), but only on the basis of a court decision.

CPLR expert assessment

The draft law seeks to implement the requirements  of the European Committee for the Prevention of Torture and Inhuman Degrading Treatment of Punishment and to respond to repeated calls from Ukrainian human rights organizations to repeal Article 391 of the Criminal Code.

In practice, the continued application of this provision perpetuates a Soviet-era (totalitarian) approach to maintaining order in places of detention. It effectively preserves the doctrine of disciplinary prejudice, under which criminal responsibility is conditioned on the prior imposition of a disciplinary sanction on the convicted person. Yet when adopting the current Criminal Code in 2001, the legislator expressly declared the abandonment of administrative and disciplinary prejudice. The persistence of this provision therefore contradicts the principles established 25 years ago.

The application of Article 391 has also revealed numerous abuses that result in violations of the rights of convicted persons.

At the same time, the Government proposes not only to repeal Article 391 but also to introduce disciplinary responsibility for the relevant misconduct. In particular, the revised wording of Part 1 of Article 133 of the Criminal Enforcement Code of Ukraine would establish disciplinary responsibility both for malicious violations of the established regime for serving a sentence and for malicious disobedience with the lawful demands of the administration of a correctional colony, where such conduct is committed at least three times within one year. 

Only a finding that the most serious disciplinary offense – malicious disobedience – has been committed would justify the most severe disciplinary sanction, namely transfer to a cell-type facility within a maximum-security correctional colony (sector).

According to the legislative initiator, this innovation will ensure proper law and order in places of detention.

CPLR experts consider the decriminalization of malicious disobedience with the lawful demands of penitentiary administrations to be a positive and long-awaited step toward improving the state mechanism for implementing the European Convention on Human Rights, the European Convention for the Prevention of Torture, and ensuring the execution of judgments and application of the case-law of the European Court of Human Rights.