Does the law regarding those sentenced to death have retroactive effect?

More than nine years have passed since the concept of the ‘death penalty’ disappeared from the criminal legislation of Ukraine. Despite the considerable time that has elapsed, a range of problems related to the retroactive effect of criminal law in relation to persons who were at one time sentenced to death, as well as those to whom life imprisonment was imposed immediately after the introduction of such a type of punishment, remain unresolved in practice.
In order to clearly outline the existing gaps, it is necessary to recall the procedure by which the exceptional measure of punishment — the death penalty — was abolished and the punishment of life imprisonment was introduced in Ukraine.
Initially, by the decision of the Constitutional Court in the case regarding the constitutional petition of 51 People’s Deputies of Ukraine concerning the compliance with the Constitution of Ukraine (constitutionality) of the provisions of Articles 24, 58, 59, 60, 93, 190-1 of the Criminal Code of Ukraine (hereinafter — the CC of Ukraine) in the part providing for the death penalty as a type of punishment (the death penalty case) No. 11-rp/99 of 29.12.1999, the provisions of Article 24 of the General Part and the provisions of the sanctions of the articles of the Special Part of the CC of Ukraine, which provided for the death penalty as a type of punishment, were found to be non-compliant with the Constitution of Ukraine (unconstitutional).
The Constitutional Court of Ukraine concluded that the death penalty as a type of punishment contradicts Article 28 of the Constitution of Ukraine, according to which no one may be subjected to torture, cruel, inhuman, or degrading treatment or punishment. This article reproduces the provisions of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The non-compliance of the death penalty with this article of the Convention is confirmed by the European Court of Human Rights, whose jurisdiction regarding the interpretation of the specified Convention was recognised by Ukraine (paragraph 1 of the Law of Ukraine of 17 July 1997). The Verkhovna Rada of Ukraine, in the Law of Ukraine ‘On Ukraine’s Accession to the Statute of the Council of Europe’, confirmed Ukraine’s commitment to ‘the ideals and principles which are the common heritage of European peoples’. After Ukraine’s accession to the Council of Europe, Ukraine has consistently taken steps aimed at fulfilling the obligations it has undertaken in connection with its membership in this organisation, which are contained in the ‘Opinion of the Parliamentary Assembly of the Council of Europe No. 190 (1995) on the application of Ukraine for accession to the Council of Europe’ (Strasbourg, 26 September 1995). These obligations include the prohibition of the death penalty as a type of punishment. This provided the grounds for the conclusion that the inalienable right of every person to life is inextricably linked to their right to human dignity. As fundamental human rights, they determine the possibility of exercising all other rights and freedoms of man and citizen and cannot be restricted or abolished.
The provisions of the CC of Ukraine on the death penalty, which were recognised as unconstitutional, lost their effect from the day the relevant decision was adopted, i.e., from 29.12.1999, which is directly stated in p. 2 of the decision. As a result, the maximum punishment provided for by the CC of Ukraine (1960) became imprisonment for a term of up to 15 years.
In this regard, the question arises as to the possibility of extending the effect of the criminal law ‘updated’ by the Constitutional Court to persons sentenced to death before the moment the decision was adopted.
Experts in the field of criminal law point out that since ancient Roman times, the principles *de lege lata* (from the point of view of current law) and *lex retro non agit* (the law has no retroactive effect) have become postulates of law. Today, they are reflected in the most important international legal acts. Thus, in particular, Article 11, paragraph 2 of the Universal Declaration of Human Rights proclaims that no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence under national or international law at the time when it was committed; Article 15, paragraph 1 of the International Covenant on Civil and Political Rights states that ‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed’; Article 7, paragraph 1 of the European Convention on Human Rights establishes that ‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’. The named principles also became the content of Articles 65 and 70 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War; Article 28 of the Vienna Convention on the Law of Treaties; Article 9 of the American Convention on Human Rights; point ‘c’ of paragraph 4 of Article 75 of Additional Protocol I to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts; point ‘c’ of paragraph 2 of Article 7 of Additional Protocol II to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of Non-International Armed Conflicts; Article 7 of the African Charter on Human and Peoples’ Rights; and Article 7, paragraph 1 of the Convention of the Commonwealth of Independent States on Human Rights and Fundamental Freedoms. The principle of ‘ultra-activity’ of the law, according to which the criminal law that was in effect at the time of the commission of the crime is applied, is also based on the provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and is a generally recognised principle of criminal law in modern legal states.
At the same time, international legal documents also allow for the application of a law adopted later to a committed crime. Thus, Article 15, paragraph 1 of the International Covenant on Civil and Political Rights provides that ‘if, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby’. Resolution 1984/50 of the UN Economic and Social Council of 25 May 1984, ‘Safeguards guaranteeing protection of the rights of those facing the death penalty’, establishes that if, after the commission of a crime, changes were made to legislation providing for milder measures of punishment, they should also apply to the offender who committed the given crime. Article 7 of the CIS Convention on Human Rights and Fundamental Freedoms provides that if, after the commission of a crime, a lighter punishment is established by law or responsibility for it is eliminated, the new law is applied. The Constitution of Ukraine (Art. 58, paragraph 1) also allows for the possibility of applying laws adopted later, according to which no one can be held responsible for acts that were not recognised by law as an offence at the time they were committed.
According to the general meaning, the effect of a normative-legal act in time should be understood as beginning from the moment this act enters into force and ending with its loss of effect; that is, the law or other normative-legal act during whose effect they occurred or took place is applied to an event or fact. A law that has gained legal force is considered effective until its cancellation or replacement by a new law, and if a law was adopted for a certain period, until the expiration of that period. The retroactive effect of the law takes place when a normative-legal act extends to facts that arose before its entry into force, but from the moment of their occurrence, i.e., a review of previous decisions based on these facts occurs already according to the new normative-legal act.
On 19.04.2000, the Constitutional Court of Ukraine adopted a decision in the case regarding the constitutional petition of 46 People’s Deputies of Ukraine on the official interpretation of the provisions of Article 58 of the Constitution of Ukraine, Articles 6, 81 of the Criminal Code of Ukraine (the case on the retroactive effect of criminal law in time). It states, in particular, that in accordance with the first part of Article 58 of the Constitution of Ukraine, laws and other normative-legal acts do not have retroactive effect in time, except in cases where they abolish or mitigate the criminal liability of a person.
In accordance with the provision of the first part of Article 6 of the CC of Ukraine (1960), the criminality and punishability of an act were determined by the law that was in effect at the time of its commission. But according to the meaning of the second part of the specified article, a law that eliminates the punishability of an act or mitigates punishment has retroactive effect in time. This fully corresponds to the aforementioned decision of the Constitutional Court of Ukraine, as well as the provisions of Article 58 of the Constitution of Ukraine.
The Constitutional Court also emphasised that the retroactive effect of criminal law means extending it to persons who committed acts before such a law entered into force. A comparison of the provisions of Articles 8, 58, 92, 152, point 1 of Section XV ‘Transitional Provisions’ of the Constitution of Ukraine and Article 6 of the CC of Ukraine gives grounds to conclude that it is exclusively criminal laws of Ukraine that determine acts which are crimes and establish responsibility for their commission. Accordingly, retroactive effect in time is also realised through criminal laws in cases where they abolish or mitigate the responsibility of a person. As a general rule, the mitigation of punishment is carried out by changing the sanction of an article of the criminal law.
Article 152 of the Constitution of Ukraine establishes that laws, other legal acts, or their individual provisions that are found to be unconstitutional lose their effect from the day the Constitutional Court of Ukraine adopts a decision on their unconstitutionality. Considering that the loss of effect by a law (or its individual provisions) is a way of ending their effect in time and/or by the circle of persons from the moment the relevant decision is adopted by a competent body, the loss of effect by individual provisions of the CC of Ukraine actually means that from this moment the criminal law takes on a new form — without the provisions that have lost effect.
Thus, from the moment the Constitutional Court of Ukraine adopted decision No. 11-rp/99 of 29.12.1999, the sanctions of the articles of the CC of Ukraine that provided for punishment in the form of the death penalty took on a new form — the maximum punishment became imprisonment for a term of up to fifteen years. That is, in fact, a mitigation of the punishability of the act took place, which is determined by comparing the sanctions of the previous and the new law, both regarding main and additional punishments, as well as the combination of these punishments.
The punishment in the form of life imprisonment was introduced in Ukraine by the Law of Ukraine of 22 February 2000 No. 1483-III ‘On Amending the Criminal, Criminal Procedure, and Correctional Labour Codes of Ukraine’ (hereinafter — the Law of Ukraine of 22 February 2000 No. 1483-III). Speaking about this legislative act, it is necessary to pay attention to the moment it entered into legal force, since the duration of the period during which the maximum punishment under the CC of Ukraine (1960) was imprisonment for a term of up to fifteen years depends on this. At the present time, there are different approaches to its determination by scientists and practitioners of judicial bodies.
The Supreme Court of Ukraine in its ruling of 13.04.2009 No. 5-5PO9 indicates that imprisonment for a term of fifteen years was the harshest punishment under the CC of Ukraine (1960) in the period from 29.12.1999 to 04.04.2000. The Opinion of the scientific-legal expertise of the Council of Scientific-Legal Experts under the Institute of State and Law named after V.M. Koretsky of the NAS of Ukraine of 07.10.2008 No. 126/160-e (hereinafter — the Opinion of 07.10.2008) indicates a somewhat different period — from 29.12.1999 to 29.03.2000. It seems the discrepancy is caused by a different approach to determining the moment the Law of Ukraine of 22 February 2000 No. 1483-III entered into force.
The Opinion of 07.10.2008 indicates that the given Law entered into force precisely on 29.03.2000. It is likely that the scientific-legal expert based this on the date of publication of the Law indicated on the Verkhovna Rada website: 29.03.2000 — in ‘Holos Ukrainy’; 04.04.2000 — in ‘Uriadovyi Kurier’; in the ‘Official Gazette of Ukraine’ — 07.04.2000, and in the ‘Bulletin of the Verkhovna Rada of Ukraine’ — 28.04.2000. It is the first date of publication that the expert proposes to recognise as the moment the named Law entered into force.
An analogous date is also indicated in the ruling of the Constitutional Court of Ukraine of 29 December 2002 in case No. 2-61/2002 on the refusal to open constitutional proceedings in the case regarding the constitutional appeal of citizen Stanislav Serhiyovych Okunkov concerning the official interpretation of the first part of Article 58 of the Constitution of Ukraine and the Law of Ukraine ‘On Amending the Criminal, Criminal Procedure, and Correctional Labour Codes of Ukraine’ regarding the effect in time of the provision providing for the replacement of the death penalty with life imprisonment.
But one must categorically disagree with such a claim, because a significant error was made when it was formulated. Thus, the procedure for the entry into force of a Law of Ukraine is defined in the Decree of the President of Ukraine of 10 June 1997 No. 503/97 ‘On the Procedure for Official Publication of Normative-Legal Acts and Their Entry into Force’. It establishes that official printed publications are, among others, the ‘Official Gazette of Ukraine’, the newspaper ‘Uriadovyi Kurier’, as well as the newspaper ‘Holos Ukrainy’ and the ‘Bulletin of the Verkhovna Rada of Ukraine’. At the same time, when preparing the Opinion of 07.10.2008, the experts did not take into account that the newspaper ‘Holos Ukrainy’ was included in the list of official publications only in April 2004 in accordance with the Decree of the President No. 589/2004 of 28.05.2004. Until that moment, normative-legal acts published in other, non-official, printed publications (including the newspaper ‘Holos Ukrainy’) were of an informational nature and could not be used for official application.
Therefore, the conclusion that the Law of Ukraine of 22 February 2000 No. 1483-III entered into force from 29.03.2000 is not correct. As a result, the opinion seems correct that imprisonment for a term of fifteen years was the harshest punishment under the CC of Ukraine (1960) in the period not from 29.12.1999 to 29.03.2000, but from 29.12.1999 to 04.04.2000.
Regarding the essence of the Law of Ukraine of 22 February 2000 No. 1483-III, this act provided for the introduction of the following amendments to the CC of Ukraine: the words ‘death penalty’ in all cases were replaced with the words ‘life imprisonment’ in the corresponding cases. In connection with such an approach of the legislator, it is necessary to pay attention to the fact that, in fact, the provisions of the criminal law that had already been considered ineffective for three months were subjected to changes. It would have been more correct, in this case, to supplement the CC of Ukraine with the relevant provisions.
In our opinion, it is precisely the practice of introducing changes to norms that were no longer in effect that gave rise to a negative trend in judicial practice regarding the replacement of punishment in the form of the death penalty with life imprisonment and defining the latter as a worthy and well-founded alternative to the exceptional measure of punishment. In addition, it seems that judicial bodies proceeded from the fact that the decision of the Constitutional Court of Ukraine No. 11-rp/99 of 29.12.1999 is not a law that mitigates criminal liability.
However, this approach seems not entirely correct.
The version of Part 3 of Article 54 of the CC of Ukraine in effect at that time did not textually regulate the situation when a convicted person is assigned a punishment of a more severe type than provided for by the sanction of the new law. However, a systemic analysis of the content of Articles 54, 3, 6, 39, 47 of the CC of Ukraine and Article 504-1 of the Criminal Procedure Code of Ukraine (hereinafter — the CPC of Ukraine) provided an answer to this. Thus, such a (more severe) punishment, after the new law entered into force, loses its legal basis and therefore is subject to replacement with the harshest type of punishment provided for by the new law. At the same time, the maximum size of such punishment could not exceed its maximum size under the sanction of the new law.
Based on this, regarding all persons sentenced to the exceptional measure of punishment — shooting — whose sentences had not been executed at the time the Constitutional Court of Ukraine adopted its decision, the assigned punishment was subject to being brought into compliance with the new version of the articles of the CC of Ukraine — a replacement with fifteen years of imprisonment.
The procedure for applying a law that mitigates criminal liability is sufficiently clearly regulated in the CPC of Ukraine. Article 405-1 of the CPC of Ukraine establishes: ‘...mitigation of punishment in cases provided for by parts 2 and 3 of Article 74 of the Criminal Code of Ukraine is carried out by the court upon the application of the convicted person or upon the submission of the prosecutor or the body in charge of executing the punishment.’
Thus, in accordance with the above-mentioned Law, the punishment regarding persons who were sentenced to the death penalty or to life imprisonment for crimes committed before 04.04.2000 must be mitigated to fifteen years of imprisonment. At the same time, as follows from the provisions of current legislation, such mitigation of punishment should be carried out by courts at the place of serving the punishment, since Article 409 of the CPC of Ukraine directly defines that ‘...Bringing a sentence into compliance with a new law that exempts from punishment or mitigates punishment regarding persons serving a sentence is decided in the order provided for by parts two and three of Article 5 of the Criminal Code of Ukraine, by a ruling of the court at the place of serving the punishment.’
Thus, in accordance with the provisions of the CPC of Ukraine, the administration of institutions for the execution of punishments (or remand prisons) after the Constitutional Court of Ukraine adopted No. 11-rp/99 of 29.12.1999 should have sent a submission to the court at the location of the institution to bring the sentences of those sentenced to the death penalty into compliance with the updated CC of Ukraine. And the court should have made a decision in the order established by Art. 411 of the CPC of Ukraine.
But these provisions also underwent some interference from the legislator. In particular, the Law of Ukraine of 22 February 2000 No. 1483-III established: ‘II. Review of sentences in cases regarding persons sentenced to the death penalty, the sentences for whom had not been executed at the time this Law entered into force, is carried out by the court that handed down the sentence.’ It was on this basis that sentences for those sentenced to the death penalty were reviewed by courts not at the place where these persons were held, but at the place where the sentence was passed.
It should be noted that the Law of Ukraine of 22 February 2000 No. 1483-III clearly stipulates: ‘III. This Law enters into force from the day of its publication.’ Based on the general provisions on the effect of the law, the latter should extend to legal relations that arose after its entry into force, since (since this law neither mitigates nor eliminates criminal liability, it also does not have retroactive effect — this follows from the decision of the Constitutional Court of Ukraine in the case on the retroactive effect of criminal law in time). Therefore, the possibility of extending this law to legal relations that arose before 04.04.2000 seems highly dubious.
Moreover, the adoption of the Law of Ukraine of 22 February 2000 No. 1483-III did not entail the introduction of amendments to the CPC of Ukraine, in connection with which a collision of legal norms arose — different regulation of one and the same procedure. And to this day, it remains unknown why judicial bodies gave preference to determining the jurisdiction of the case under the Law of Ukraine of 22 February 2000 No. 1483-III over the provisions of the CPC of Ukraine, which were not cancelled or changed.
At the same time, the question arises: on what grounds were cases regarding the bringing of court sentences for those sentenced to the death penalty into compliance not scheduled for consideration in local courts during more than three months of the new version of the CC of Ukraine’s provisions being in effect? Thus, regarding persons sentenced to the death penalty whose sentences had not been executed at the time the Constitutional Court of Ukraine adopted decision No. 11-rp/99 of 29.12.1999, both criminal and procedural law were incorrectly applied.
During this same period, punishment in the form of life imprisonment was imposed on persons sentenced to the death penalty, even during the cassation consideration of the case, which, in our opinion, is also unlawful. Moreover, in practice, there were cases when punishment in the form of life imprisonment was imposed even on persons who committed a crime in the period from 29.12.1999 to 04.04.2000. And it took nine (!) years to recognise the unlawfulness of such actions. In particular, only in 2009 did the Supreme Court reach such conclusions (ruling No. 5-5P09 of 13.04.2009 regarding the convicted P.O.L.): ‘The court sentence established that P.O.L. on 6 January 2000 committed the intentional murder of B.T.M. under aggravating circumstances, for which he was sentenced on 2 February 2001 to life imprisonment with confiscation of property. In accordance with the provisions of Article 93 of the CC of Ukraine of 1960, for intentional murder under aggravating circumstances, punishment was established in the form of imprisonment for a term of 8 to 15 years or the death penalty, and in cases provided for by point ‘a’ of this article, with confiscation of property.
At the same time, by the Decision of the Constitutional Court of Ukraine of 29 December 1999, the provisions of Article 24 of the General Part and the provisions of the sanctions of the articles of the Special Part of the Criminal Code of Ukraine, which provide for the death penalty as a type of punishment, were found to be non-compliant with the Constitution of Ukraine (unconstitutional) and the Verkhovna Rada of Ukraine was invited to bring the Criminal Code of Ukraine into compliance with this Decision. According to Part 2 of Art. 152 of the Constitution of Ukraine, laws, other legal acts, or their individual provisions that are found to be unconstitutional lose their effect from the day the Constitutional Court of Ukraine adopts a decision on their unconstitutionality.
In fulfilment of the specified decision of the Constitutional Court of Ukraine, the Law of Ukraine ‘On Amending the Criminal, Criminal Procedure, and Correctional Labour Codes of Ukraine’ was adopted on 22 February 2000, by which the death penalty as an exceptional measure of punishment was excluded from the Criminal Code of Ukraine and a new type of punishment was introduced — life imprisonment. This law entered into force on 4 April 2000. According to the content of Part 1 of Art. 6 of the CC of Ukraine of 1960 and Part 2 of Art. 4 of the CC of Ukraine of 2001, the criminality and punishability of an act are determined by the law on criminal liability that was in effect at the time of its commission.
Thus, based on the content of the Decision of the Constitutional Court of Ukraine, the specified provisions of the Constitution of Ukraine, and the articles of the Criminal Code of Ukraine, in the period from 29 December 1999 to 4 April 2000, the harshest punishment that could be imposed on P.O.L. for a crime provided for by points ‘a’, ‘z’, ‘i’ of Art. 93 of the CC of Ukraine of 1960, committed in this period — on 6 January 2000 — was imprisonment for a term of 15 years.’
Thus, the specified court decision fully confirms the thesis that in the period from 29.12.1999 to 04.04.2000, the CC of Ukraine provided for a maximum punishment in the form of imprisonment for a term of up to fifteen years. Despite the generally positive assessment of the cited judicial practice, it must be noted that it solves only one problem — the application of a punishment that was not provided for by criminal law. On the other hand, the question of mitigating criminal punishment regarding persons who were at one time sentenced to the death penalty remains unresolved. Its relevance is also evidenced by the circumstance that during 2002–2009, appeals regarding the official interpretation of the first part of Article 58 of the Constitution of Ukraine and the Law of Ukraine ‘On Amending the Criminal, Criminal Procedure, and Correctional Labour Codes of Ukraine’ of 22 February 2000 No. 1483-III concerning the effect in time of the provision providing for the replacement of the death penalty with life imprisonment were received by the Constitutional Court. But in these cases, the opening of constitutional proceedings was refused on the basis of point 2 of Article 45 of the Law of Ukraine ‘On the Constitutional Court of Ukraine’ due to the non-compliance of the constitutional appeal with the requirements provided for by the Constitution of Ukraine and the Law of Ukraine ‘On the Constitutional Court of Ukraine’. In fact, the Constitutional Court of Ukraine did not recognise the justifications presented in the appeals as sufficient to open constitutional proceedings (rulings of the Constitutional Court of Ukraine of 29 December 2002 under No. 71-u/2002, No. 72-u/2002, and No. 11-u/2004), because for this, there must be an ambiguous application of the provisions of the Constitution of Ukraine or the laws of Ukraine by the courts of Ukraine, other bodies of state power, if the subject of the right to a constitutional appeal believes that this can lead or has led to a violation of their constitutional rights and freedoms. Instead, in practice, the courts took an unambiguous approach to solving this issue, replacing the death penalty in all cases with life imprisonment.
Such a state of affairs led to the fact that at the present time, convicted persons are effectively deprived of the opportunity to influence the state of observance of their rights in the part regarding the review of the decision on the punishment assigned to them. Thus, the time limit for appealing court rulings on the replacement of punishment in the form of the death penalty with life imprisonment in the appellate or cassation order, established by the CPC of Ukraine, has long since expired. Courts at the place where they are serving their sentences refuse to review these rulings, referring to the fact that the sentences against them were brought into compliance with a milder criminal law back in 2000.
As it seems, at the present time, there are two ways to solve the problem of the retroactive effect of the law on criminal liability in time regarding persons who were at one time sentenced to the death penalty.
First of all, this is the possibility of reviewing court decisions in the order of exceptional proceedings. Thus, Art. 404-4 of the CPC of Ukraine defines that the grounds for reviewing court decisions that have entered into legal force in the order of exceptional proceedings are, among other things, the incorrect application of criminal law and a significant violation of the requirements of the criminal procedure law, which significantly affected the correctness of the court decision. All of the above, in our opinion, convincingly testifies to the existence of such grounds.
In this case, a submission for the review of a court decision may be brought by judges of the cassation court in a number of no less than five persons. A petition for such a review may be filed by the convicted person, their defence lawyer or legal representative, the prosecutor who participated in the consideration of the case by the court of first, appellate, or cassation instance, the Prosecutor General of Ukraine and their deputies, the Prosecutor of the Autonomous Republic of Crimea, the prosecutor of the region, the cities of Kyiv and Sevastopol, prosecutors equivalent to them, and their deputies within the limits of their powers — regardless of their participation in the consideration of the case by the court, as well as other persons if such a right is granted to them by legislative acts of Ukraine. Thus, the law clearly outlines the circle of persons who have the right to file a petition for the review of a case, and the initiative to submit such an application cannot come from the administration of the institution for the execution of punishments.
It should be noted that the review of a court decision in the order of exceptional proceedings due to the incorrect application of criminal law and a significant violation of the requirements of the criminal procedure law is a rather complicated and lengthy procedure. In this regard, it seems that it is more appropriate to solve the issue of mitigating punishment for convicted persons for whom the death penalty was replaced with life imprisonment in another way.
On 15.04.2008, the Verkhovna Rada of Ukraine adopted the Law of Ukraine ‘On Amending the Criminal and Criminal Procedure Codes of Ukraine regarding the Humanisation of Criminal Liability’, which entered into force on 07.05.2008. By this law, Article 5 of the CC of Ukraine was supplemented with Part 4 of the following content: ‘If, after a person committed an act provided for by this Code, the law on criminal liability changed several times, the law that abolishes the criminality of the act, mitigates criminal liability, or otherwise improves the person’s position has retroactive effect in time.’
This innovation in the CC of Ukraine fully relates to the issue of abolishing the death penalty and introducing punishment in the form of life imprisonment. We have already proven that in the period 1999–2000, the criminal law changed several times: 1) until 29.12.1999 — maximum punishment — the death penalty; 2) from 29.12.1999 to 04.04.2000 — maximum punishment — fifteen years of imprisonment; 3) from 04.04.2000 to the present — maximum punishment — life imprisonment. Based on Part 4 of Art. 5 of the CC of Ukraine, it should be concluded that the law that was in effect in the period from 29.12.1999 to 04.04.2000 has retroactive effect, because it maximally mitigated the punishment. In other words, the amended version of Art. 5 of the CC of Ukraine, in our opinion, put an end to the discussion as to which criminal law exactly should be applied regarding persons who were at one time sentenced to the death penalty.
In fulfilment of the Law of Ukraine of 15.04.2008 ‘On Amending the Criminal and Criminal Procedure Codes of Ukraine regarding the Humanisation of Criminal Liability’, the administration of institutions for the execution of punishments must file a submission to the court at the place of serving the punishment, in which they request to extend the retroactive effect of the criminal law that was in effect from 29.12.1999 to 04.04.2000 to persons sentenced to the death penalty, in relation to whom the punishment was replaced with life imprisonment, with the replacement of the latter with fifteen years of imprisonment. Such a replacement can be carried out on the basis of Art. 409 and in the order of Art. 411 of the CPC of Ukraine by a ruling of the local court, which significantly simplifies the procedure for applying a more humane law.
In conclusion, it should be expressed as a hope that to confirm the arguments expressed in this article and to ensure the review of court decisions by which the punishment in the form of the death penalty was replaced with life imprisonment, it will take considerably less time than nine years.
Yakovets I.S., Candidate of Legal Sciences, Senior Research Fellow of the Sector for Researching Problems of Criminal-Executive Legislation
IVPZ of the Academy of Legal Sciences of Ukraine, Kharkiv