The mechanism for protecting the rights of those sentenced to imprisonment during distribution to penal institutions

Article 63 of the Constitution of Ukraine establishes that a convicted person enjoys all the rights of a human being and citizen, with the exception of restrictions defined by law and established by a court verdict. In other words, the majority of human and civil rights, freedoms, and duties provided for in Section II of the country’s Basic Law apply to the convicted. It follows from this constitutional norm that the rights of the convicted may be restricted only by laws and established by a court verdict, not by other regulatory legal acts, including departmental ones. Part 1 of Article 7 of the Criminal Executive Code of Ukraine, in addition to the provisions of the Constitution, establishes that the state respects and protects the rights, freedoms, and legitimate interests of the convicted, ensures the necessary conditions for their correction and resocialisation, social and legal protection, and their personal safety.

Article 8 of the Criminal Executive Code of Ukraine, among the basic rights of the convicted, names the right to legal assistance and the right to apply, in accordance with the legislation, with proposals, statements, and complaints to the administration of bodies and institutions of execution of sentences, their superior bodies, the Ukrainian Parliament Commissioner for Human Rights, the court, the prosecutor’s office, other government bodies, local self-government bodies, and associations of citizens.

In the context of the above, the question of how a directly convicted person or other interested parties can influence the activities of the Regional or Appellate Commission[1] and protect their rights also deserves attention.

The Department, in its relevant Regulations[2], established a mechanism for appealing the decisions of both the Regional and Appellate Commissions. Thus, a decision of the Regional Commission that is appealed by the applicant is submitted for its reconsideration upon the instruction of the head of the territorial administration body of the Department.

In other words, the head of the regional administration of the Department, in the event of grounds to doubt the legitimacy of a Regional Commission decision, may give an instruction to reconsider the issue. At the same time, the Commission is accountable and subordinate only to the Head of the Department and his first deputy. Therefore, the authority of the head of the regional administration of the Department to issue mandatory instructions to it seems questionable, even though the composition of the commission is appointed by him.

According to Article 16 of the Law of Ukraine “On Citizens' Appeals,” a complaint against a decision of a specific body is submitted in order of subordination to a higher body or official, and in the absence of the latter, directly to the court. Consequently, it is necessary to appeal a decision of the Regional Commission to the Head of the Department or his first deputy.

The Instruction provides that a decision of the Regional Commission, which is unlawful from the citizen’s point of view, may be appealed to the Appellate Commission, one of whose tasks is the consideration of statements and complaints from such persons, their defenders, legal representatives, parents, close relatives, and other citizens regarding issues of distribution and direction of those sentenced to imprisonment. This provision corresponds to Article 19 of the named Law, according to which, in case of necessity and if possibilities exist, the consideration of citizens' appeals is assigned to a unit of the staff apparatus specifically authorised to carry out this work.

The question also arises regarding Clause 7 of the Regulation on the Appellate Commission, according to which its meetings are held as complaints, statements, and other materials are received, but no later than thirty days from the day of their receipt. It has already been pointed out that the consideration of citizens' appeals must take place in accordance with current legislation, which provides that appeals are considered and resolved within a period of no more than one month from the day of their receipt, and those not requiring additional study — immediately, but no later than fifteen days from the day of their receipt. Upon a substantiated written request of a citizen, the consideration period may be shortened (Article 20 of the mentioned Law). In practice, meetings of the Appellate Commission are held only once a month, which leads to the Department effectively acknowledging that all complaints and statements require verification, and it excludes the possibility of their consideration outside the thirty-day period.

No departmental act of the Department provides a mechanism for the practical implementation of the provisions of Article 19 of the Law of Ukraine “On Citizens' Appeals” regarding the presence of the applicant, at their request, at the meeting of the Appellate Commission where their statement or complaint is being considered. First and foremost, this concerns persons who are in custody in pre-trial detention centres, as conviction does not deprive them of their rights to appeal decisions of the Regional Commission and to be personally present during the consideration of the complaint.

It also seems exceptionally arrogant that a decision of the Appellate Commission challenged by an applicant is submitted for reconsideration only in the presence of newly discovered circumstances. Thus, the Department attests to the impossibility of any violations of legality on the part of the members of the Appellate Commission. This is also confirmed by the provision according to which the Department acknowledges the possibility of the cancellation of only a Regional Commission decision by the prosecutor’s office or the court, while a decision of the Appellate Commission can be cancelled only by the Head of the Department and sent for reconsideration.

At the same time, the indicated Law provides for an appeal in court against the actions or decisions of local self-government bodies, institutions, enterprises, organisations, associations of citizens, and officials if the applicant does not agree with the decision taken regarding their appeal (Article 16). In other words, the latter has the right to a judicial appeal against decisions of both the Regional and Appellate Commissions in the procedure of civil-procedural proceedings in accordance with the provisions of the Code of Administrative Judiciary of Ukraine. Moreover, the Law of Ukraine “On Citizens' Appeals” allows this to be done immediately after a decision is made — in this case, by the Regional Commission — for which there is no need to turn to the Appellate Commission and engage in searching for any newly discovered circumstances.

Why, then, are there such complex procedures established by the Department if there is another order for their resolution? As is correctly noted in scientific literature, the Department has only created additional problems for itself, the courts, and the convicted. The latter have a legal right to appeal the verdict itself, under which they were sentenced to imprisonment, in the appellate or cassation order. Then, to appeal the decision of the Regional Commission, first in the Regional Administration, then in the Department, and afterwards in the local court. But if the convicted person does not agree with the decision of the local court, they have the opportunity to turn to the appellate or cassation instance again.

These overly complex procedures can lead to one of two situations: (a) either because this process is sufficiently time-consuming, and the status of the convicted person in such a case is not fully defined, taking into account the practice that has formed over the years, the person will be kept in a pre-trial detention centre, which are already overly overcrowded; or (b) because in current legislation and departmental regulatory legal acts, there is no provision that the filing of a complaint suspends the execution of a Regional Commission decision, and according to Article 87 of the Criminal Executive Code of Ukraine, those sentenced to imprisonment must be sent to serve their sentence no later than a ten-day period from the day the verdict enters into legal force or from the day the order for the execution of a verdict that has entered into legal force is received from the court, such a person, even in the presence of a possible error in determining the type of colony, will be sent to places of imprisonment, as a result of which a violation of their rights is not excluded.

As can be seen, the mechanism established by the regulatory legal acts of the Department for protecting the rights of those sentenced to imprisonment when determining the type of penal institution does not correspond to the provisions of the Constitution of Ukraine and current legislation, and its unjustified complexity introduces only unnecessary confusion into practical operations.

[1] Here and further in the text: Regional commissions — commissions for the distribution, direction, and transfer for serving sentences of persons sentenced to imprisonment, which are formed in the territorial administration bodies of the State Department of Ukraine for the Execution of Sentences; and the Appellate Commission of the State Department of Ukraine for the Execution of Sentences regarding the distribution, direction, and transfer for serving sentences of persons sentenced to imprisonment, which is formed in the State Department of Ukraine for the Execution of Sentences.

[2] These refer to the Regulation on the Regional Commission for the distribution, direction, and transfer of those sentenced to imprisonment, and the Regulation on the Appellate Commission of the State Department of Ukraine for the Execution of Sentences regarding the distribution, direction, and transfer for serving sentences of persons sentenced to imprisonment, approved by the order of the State Department of Ukraine for the Execution of Sentences of 16 December 2003, No. 261, registered with the Ministry of Justice of Ukraine under No. 1270/8591 on 30 December 2003.