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On November 6, 2022, the following laws adopted on October 18, 2022 entered into force: 1) Law of Ukraine № 2690-IX “On Amendments to the Code on Administrative Offenses of Ukraine, the Criminal Code of Ukraine, and the Criminal Procedure Code of Ukraine regarding the implementation of decisions of the European Court of Human Rights”; and 2) Law of Ukraine №2689-ІХ “On Amendments to certain legislative acts of Ukraine regarding implementation of decisions of the European Court of Human Rights”.
The laws were developed by the Ministry of Justice to implement sub-section 19.1 “Human rights and access to justice” of section 19 of the Program of Activities of the Cabinet of Ministers of Ukraine approved by the Resolution № 471 of the Cabinet of Ministers of Ukraine of June 12, 2020. As Deputy Minister of Justice Oleksandr Banchuk noted, “legislative amendments address a significant number of systemic issues detected by the European Court of Human Rights in the Ukrainian legislation and law enforcement practice, and will allow Ukraine to avoid future violations of the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms”.
In particular, the laws provide for:
1) humanizing the punishment in the form of life imprisonment by granting to persons sentenced to life imprisonment the right for commutation in the form of imprisonment for a set term in order to fulfill the requirements of Article 3 of the Convention (aimed at implementation of the series of the ECHR cases in re: “Petukhov v. Ukraine (№ 2)”, which became final on September 9, 2019 and combines 20 cases against Ukraine) – in other word, implementation in the Ukrainian legislation of the “right to hope” formulated by the ECHR;
2) providing convicted persons with access to the materials of criminal proceedings (aimed at implementation of the series of the ECHR cases in re: “Naidyon v. Ukraine”, which became final on January 14, 2011, and “Vasyl Ivashchenko v. Ukraine”, which became final on October 26, 2012, and combine 6 cases against Ukraine);
3) addressing the issues on the court’s application of a preventative measure exclusively on the basis of requests by case participants, as well as by the investigating judge before a preliminary court has been session conducted and by a cassation court, with the aim to guarantee the right of individuals to freedom and personal integrity provided for in Article 5 of the Convention (aimed at implementation of the ECHR decisions in the case of “Kharchenko v. Ukraine”, which became final on May 10, 2011, “Chanev v. Ukraine”, which became final on January 9, 2015, and “Kushch v. Ukraine”, which became final on March 3, 2016);
4) granting the right to strike at transportation enterprises in order to guarantee the right to freedom of associatio, provided for in Article 11 of the Convention (aimed at implementation of the ECHR decision in the case of “Veniamin Tymoshenko and others v. Ukraine”, which became final on January 2, 2015).
a) “Right to hope”
Considering the number of legislative amendments and the depth of the problems they address, this analysis will only deal with the first point of the above-mentioned legislative changes, namely the introduction into Ukrainian legislation of the “right to hope” formulated by the ECHR in a number of decisions – i.e., any person, even one sentenced to life imprisonment, has the right to early release. Otherwise, the lack of “hope” causes them moral suffering at a level that reaches the minimum level of cruelty provided for by Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, i.e. torture.
b) state of legislative regulation
Currently, the Criminal Code of Ukraine does not provide for the application of parole to persons sentenced to life imprisonment. In accordance with clause “b” of section one of Article 4 of the Law of Ukraine “On the Application of Amnesty in Ukraine”, amnesty cannot be applied to persons for whom death penalty has been replaced with imprisonment under the amnesty procedure, as well as to persons sentenced to life imprisonment. An act of pardon can be used to replace the sentence imposed by the court in the form of life imprisonment with imprisonment to a term of at least twenty-five years (section 2 of Article 87 of the Criminal Code of Ukraine).
The above-mentioned provisions suggest the lack of an effective mechanism for mitigating the punishment in the form of life imprisonment. This was found by the ECHR in its decision in «Petukhov v. Ukraine (№ 2)» (application № 41216/13), which became final on September 9, 2019, as a violation of Article 3 of the Convention in connection with the failure to provide the applicant with adequate medical care during his detention, as well as due to the fact that the applicant’s sentence of life imprisonment could not be commutated. Justifying the lack of effective mechanism for mitigating the life imprisonment in Ukraine and referring to its practice, the ECHR noted that exemption from serving life imprisonment due to illness only means that the convicted person is allowed to die at home or at a hospital, instead of inside a penitentiary institution, and cannot be considered as a “prospect of release”.
A pardon by the President of Ukraine which, according to the ECHR, remains the only possibility for persons served life imprisonment to mitigate their punishment, is the “modern equivalent of the royal prerogative of pardon” (paragraph 180 of the decision), and not an effective mechanism. The ECHR pointed out that the reform of the system of revision of punishments in the form of life imprisonment must be implemented in Ukraine.
On September 17, 2021, the Constitutional Court of Ukraine issued a Decision №6-р(ІІ)/2021 р. in the case of revising the sentence of a person sentenced to life imprisonment, namely, recognized as unconstitutional section one of Art. 81 and section one of Art. 82 of the Criminal Code of Ukraine due to the fact that such provisions make such a review impossible for persons sentenced to life imprisonment.
The Court stated that one consequence of Ukraine joining the European legal order in the field of human rights through the ratification of the Convention is that the introduction and application of criminal punishments in the national legal order cannot be carried out only in accordance with the national criteria of criminal justice. In this matter, it is the duty of the state to be guided by international standards in the area of human rights, in particular those relating to human dignity of the persons subjected to punishment. As such, life imprisonment of a person without the possibility of future release means equating the term of life imprisonment with deprivation of liberty until the person’s natural death, and therefore is contrary not only to the purpose of punishment, but also to the very essence of human dignity;as it calls into question its absolute nature and constitutes a violation of the state’s positive duty to protect human dignity, and therefore does not comply with section one of Art. 3, Art. 23, section two of Art. 28, and section three of Art. 63 of the Constitution of Ukraine.
The Constitutional Court of Ukraine required the Verkhovna Rada of Ukraine to immediately bring the legal regulation set by Articles 81 and 82 of the Criminal Code of Ukraine into compliance with the Constitution of Ukraine and its Decision.
c) assessment of the mechanism introduced by the legislator
The adopted Law amended Article 82 of the Criminal Code of Ukraine, which defines the possibility of replacing the unserved part of the sentence with a lighter one for a person serving life imprisonment after he/she has actually served at least fifteen years of life imprisonment. In such a case, the punishment in the form of life imprisonment may be replaced by the punishment in the form of imprisonment for a term of fifteen to twenty years.
Thus, the minimum term served before a person’s release will be 30 years from the date of entry into force of the guilty verdict. However, this term can be reduced in light of the rules for calculating the term of detention during a pre-trial investigation under the so-called “Savchenko law” and may be less than 30 years.
As such, the proposed mechanism meets the criteria established by the ECHR, because it provides not for an illusory possibility of release through an act of pardon, but rather for a clear review mechanism with its set procedure, terms, and consequences. Such a mechanism allows those sentenced to life imprisonment the opportunity to predict with a certain degree of accuracy what they need to do in order for their release to be considered, and under what conditions it is possible.
It should be noted that in most countries where punishment in the form of life imprisonment can be imposed, there are mechanisms for revising the sentence after serving a certain minimum term of punishment established by law. Therefore, this is not a matter of some Ukrainian “know-how”, but a generally recognized approach in criminal justice. Such a mechanism has been integrated within the law and sentencing practice, and provided for in the legislation of thirty-two countries: Albania – 25 years, Armenia – 20 years, Austria – 15 years, Azerbaijan – 25 years, Belgium – 15 years (with extension to 19 or 23 years for recidivists), Bulgaria – 20 years, Cyprus – 12 years, Czech Republic – 20 years, Denmark – 12 years, Estonia – 30 years, Finland – 12 years, France – usually 18 years (30 years for certain murders), Georgia – 25 years, Germany – 15 years, Greece – 20 years, Hungary – 20 years (unless a court orders otherwise), Ireland – prior review by the Parole Board after 7 years (excluding some types of murder), Italy – 26 years, Latvia – 25 years, Liechtenstein – 15 years, Luxembourg – 15 years, Moldova – 30 years, Monaco – 15 years, Poland – 25 years, Romania – 20 years, Russia – 25 years, Slovakia – 25 years, Slovenia – 25 years, Sweden – 10 years, Switzerland – 15 years (reduced to 10 years), North Macedonia – 15 years, and Turkey – 24 years (30 years for aggravated life imprisonment and 36 years for combined aggravated life imprisonment sentence). In Scotland, when ordering a life sentence, the judge is required to set a minimum term, despite the possibility that such a term will exceed the remainder of a prisoner’s natural life (data taken from the explanatory note to the draft law prepared by the experts at the Ministry of Justice).
d) criticism of the adopted legislative amendments
At the same time, the adopted mechanism is criticized in the media, primarily by human rights defenders. The problem is that the countdown of the 15-year time limit for filing a petition begins from the moment the Law comes into force, not from the moment of conviction. This rule applies to all persons; thus the mechanism is only being launch now.
Yet, the reason for this is the initial version of the draft Law № 4049 of September 3, 2020, which provided that those sentenced to life imprisonment who, on the date of entry into force of the Law, have served more than ten years of the sentence imposed by the court have the right to have their sentence replaced with a sentence in the form of imprisonment for a term from five to twenty years, provided that the total term of such punishment cannot be less than twenty-five years.
Therefore, those persons who, due to their health or old age, could hope for release during the consideration of the draft law, may have lost such “hope” as the review mechanism remains illusory for them, which could become the subject of new cases brought to the ECtHR. The same is true for the general perception of adopted legislative amendments: despite the Government’s proposal, the Parliament members significantly changed the future fate of persons sentenced to life imprisonment by introducing their amendments.
It is hard to say to what extent the criticism of the final version of the mechanism can be applied to the Government, because the parliamentary process assumes joint responsibility for the adopted amendments. The final word in this story belonged to Parliament members due to unjustified fears of spike in crime levels, societal disapproval for too humane treatment of lifers, etc. Nevertheless, the Government made efforts to implement both the decisions of the ECHR and the decision of the Constitutional Court, which means from now on, there is a mechanism for reviewing the sentence for persons sentenced to life imprisonment – the “right to hope” in Ukraine.