DENIED PAROLE? APPLY TO THE COURT

The only grounds for refusing parole are circumstances demonstrating that the convicted person has not proven their rehabilitation. Furthermore, if a supervisory commission refuses to approve the submission of a motion to the court on spurious and legally unfounded grounds, it effectively signifies a failure to perform the functions assigned to it.
In practice, there are cases where supervisory commissions groundlessly refuse to approve a motion from the prison administration regarding the parole of a convicted person.
How should one proceed in such cases?
In our opinion, in this situation, the convicted person has the right to apply to the court independently with a request for parole.
According to the Criminal Executive Code of Ukraine, the authority to present a convicted person for parole, provided there are grounds for doing so, is vested in the administration of the penal institution (Article 154, Part 3). Part 1 of Article 407 of the Criminal Procedure Code of Ukraine indeed stipulates that the resolution of this matter must be based solely on a joint motion from the institution’s administration and the supervisory commission.
However, at the same time, Article 40 of the Constitution of Ukraine guarantees the right of every citizen to judicial protection; Article 55 guarantees the right to defend one’s rights and freedoms by any means not prohibited by law. Part 1 of Article 8 and Part 1 of Article 107 of the Criminal Executive Code of Ukraine enshrine the right of convicts to appeal to various authorities, including judicial ones.
As follows from the decision of the Constitutional Court of Ukraine of 1 December 2004, No. 18-rp/2004 (which is mandatory for execution throughout the territory of Ukraine), a citizen’s legitimate interest is subject to the same judicial protection as a right guaranteed by law.
That is to say, a convicted person may apply to the court on the basis of the Constitution of Ukraine and the Criminal Executive Code of Ukraine not only to protect a right explicitly provided for by law, but also a legitimate interest, in particular, the possibility of being granted parole from further serving a sentence (as explained by the Constitutional Court of Ukraine, a legitimate interest is the aspiration to enjoy some material or non-material benefit, the provision of which is not an obligation of any person).
We recommend that the administration of the penal institution attaches to the convicted person’s application all materials characterizing their behavior and attitude towards work during the period of serving the sentence, an extract from the minutes of the institution’s commission meeting and the supervisory commission meeting, as well as other materials confirming the groundlessness of the supervisory commission’s refusal.
In this regard, it is necessary to bear in mind that the grounds for applying for parole from serving a sentence are defined in the Criminal Code of Ukraine (Article 81), and the Criminal Procedure Code of Ukraine merely establishes the procedure for resolving this matter.
The law provides that parole may be applied if a convicted person has proven their rehabilitation through conscientious behavior and attitude towards work. The authority to assess the degree of rehabilitation, according to Part 3 of Article 154 of the Criminal Executive Code of Ukraine, is assigned to the exclusive competence of the relevant commission of the penal institution.
Based on this, we can assert that the only grounds for refusal of parole are circumstances indicating that the convicted person has not proven their rehabilitation. It is precisely this to which the Supreme Court of Ukraine drew the attention of the courts in its Resolution of 26 April 2002, No. 2, which, in particular, states that the main condition for making a decision on parole is proving that the convicted person has demonstrated their rehabilitation through conscientious behavior and attitude towards work (Paragraph 2 of the specified resolution).
Furthermore, it should be noted that in the Regulation on Supervisory Commissions, approved by the Resolution of the Cabinet of Ministers of Ukraine of 1 April 2004, No. 429, there is no definition of circumstances upon which these commissions may base a decision to refuse a joint submission of a motion to the court regarding parole. Based on this, we can assert that these bodies are obliged to be guided by the same facts as the administration of the penal institution. That is, this decision must be made in accordance with Article 154 of the Criminal Executive Code of Ukraine and Article 81 of the Criminal Code of Ukraine, specifically based on the circumstances defined therein.
Moreover, it is necessary to remember that the supervisory commission is an authority tasked with the duty of exercising public control over the observance of the rights and freedoms of convicts (Article 25 of the Criminal Executive Code of Ukraine and Paragraph 1 of Article 3 of the Regulation on Supervisory Commissions). Consequently, a refusal to submit a motion to the court on spurious and legally unfounded grounds effectively signifies a failure to perform the assigned functions.
In such cases, both the convicted person and the institution’s administration also have the right to appeal to the prosecutor’s office to resolve the issue of holding the commission members who made the unlawful decision accountable. As a document confirming the violation of current legislation, we recommend attaching the court decision which established that the supervisory commission’s refusal to submit a joint motion was groundless.
Appealing to the prosecutor’s office seems appropriate, as according to Article 5 of the Law of Ukraine ‘On the Prosecutor’s Office’, the prosecutor’s office exercises supervision over the observance of laws during the execution of decisions in criminal cases. For this purpose, it is vested with sufficiently broad powers, in particular, to demand for inspection decisions, orders, and other documents, as well as to submit motions and protests against them, initiate disciplinary proceedings, and issue directives on the elimination of obvious violations of the law.