‘Sign for a new term’
Does anyone remember the Stalinist repressions of the GULAG? Expressions such as ‘twenty-five years without the right to correspondence’? Perhaps only grey-haired veterans, and the KGB archives, which still cannot bring themselves to reveal to descendants the secrets of their terrible historical legacy: torture, mass killings by the decision of ‘troikas’, and criminal prosecution of people who did not share Soviet ideology. Meanwhile, people should know these facts, if only to ensure such practices are never repeated. And does anyone remember the expression ‘sign for a new term’? That is when a person is serving a sentence that is nearing its end, and they are suddenly informed of an extension of their imprisonment for some more time. Thus, they could be kept serving a sentence until they changed their ideological views or found common ground with the correctional institution’s management.
Unfortunately, this is possible in modern Ukraine, which declares a European direction of development. Moreover, this is not in isolated cases. The practice of punishing prisoners with an additional term is a fairly common technology of so-called ‘combat’ by the administration of correctional institutions against persons who, in the opinion of prison officials, are malicious violators of the detention regime. That is, any person whom the correctional colony administration labels a malicious violator of the detention regime can be subjected to criminal prosecution on the grounds of a criminal offence on completely legal grounds. And this allows for adding a certain term of imprisonment to the one that the convict has already almost served.
In Stalinist times, before the end of their detention, a convict would be summoned to the security post and made to read an order assigning a new term of punishment. It could be as long as ten years. Many political prisoners were tried for uprisings in the camps in 1953–1954. Those who had 25 years of imprisonment had another 25 added.
In the days of Andropov, in the early eighties, changes were introduced to the criminal code. According to Article 183-3, under the guise of the ‘fight against organised crime and corruption’—when they tried to see an offender in everyone—it was possible to turn on the lights in cinemas in the middle of a screening, and check the documents of everyone present to find out whether a particular cinemagoer should have been at their workplace and fulfilling the state programme instead of watching a film. Now, such a form of state coercion for the purpose of favouring economic growth and increasing production seems a relic of the past. But it was in that distant 1983 (according to the decree of the Presidium of the Supreme Soviet of the Ukrainian SSR of 23 September 1983, No. 5855-x) that the ‘punitive’ and ‘repressive’ Criminal Code of the Ukrainian Soviet Socialist Republic in the 1960 edition was supplemented by a novella that concerned precisely those serving sentences in places of deprivation of liberty. This norm read as follows: ‘Malicious disobedience to the requirements of the administration of a correctional labour institution or other opposition to the administration in the exercise of its functions by a person serving a sentence in places of deprivation of liberty, if this person was subjected to a penalty in the form of transfer to a cell-type room (solitary confinement) or was transferred to a prison for violating the requirements of the detention regime within a year, — is punishable by imprisonment for a term of up to three years.’ The second part of this article provided for punishment of up to five years. Under this norm, the court would assign a new punishment of up to three or five years to a convict for administrative misdemeanours (with the assistance of the institution’s administration).
In 2001, a new, democratic, as it was called at the time, Criminal Code of Ukraine was adopted in independent Ukraine. A progressive feature of the new Criminal Code was the legislator’s rejection of references to administrative prejudice as a condition for criminal liability.
Accordingly, under Part 1 of Article 2 of the Criminal Code of Ukraine, ‘the basis of criminal liability is the commission by a person of a socially dangerous act containing the elements of a crime provided for by this Code’, that is, a criminally punishable act. However, by some strange twist, an article from the 1960 code remained almost unchanged in the new code. It was now without a second part, with a different name (now 391), and worded as follows: ‘Malicious disobedience to the requirements of the administration of a correctional institution or other opposition to the administration in the lawful exercise of its functions by a person serving a sentence in the form of restriction of liberty or in the form of imprisonment, if this person was subjected, within a year, to a penalty for violating the requirements of the detention regime in the form of transfer to a cell-type room (solitary confinement) or was transferred to a stricter regime of sentence execution.’ The condition for holding a convict liable under Article 391 of the Criminal Code is the fact of the application of an administrative penalty in the form of transfer to a cell-type room (hereinafter CTR)—a solitary confinement cell—for actions that pursued the goal of evading further service of the sentence (essentially prejudice).
However, the very construction of the disposition of this norm directly contradicts the publicly announced conceptual foundations of the Criminal Code adopted by the Verkhovna Rada of Ukraine in 2001. After all, under this norm, persons are subjected to criminal prosecution for committing administrative misdemeanours, not criminally punishable acts.
At the same time, this norm is applied not only when the convict intends to avoid further service of the sentence. It is predominantly used in cases where persons are accused who were placed in a CTR for other reasons: for refusing extra cleaning of the premises; for bedding not made ‘to the standard’; for incorrect behaviour with a representative of the administration; for changing a bed in a cell without the administration’s permission; or for refusing to carry out any instruction from the institution’s staff that the administration of these institutions considers a lawful requirement. Quite often, the pre-trial investigation in these cases takes place on the territory of the colony. And the investigator—that is, the body providing the materials to the investigator that form the basis of the charge and are later passed to the court as criminal case materials—is the head of the institution. For the court, the mere fact of placing the accused in a cell-type room is usually enough to consider the application of Article 391 of the Criminal Code lawful.
On 21 January 2010, the Verkhovna Rada adopted legislative amendments to the provisions of the Criminal and Criminal-Executive Codes of Ukraine (regarding the protection of the rights of convicts in institutions of sentence execution). These amendments removed paragraph 5 of Part 1 of Article 132 of the Criminal Code of Ukraine, which provided for the assignment of extra room cleaning as a penalty for convicts. This specific type of administrative punishment was widely used, and despite the innovation, is still being used today by the administrations of sentence execution institutions to artificially create accusations against a convict of committing a new crime, provided for by Article 391 of the Criminal Code of Ukraine (malicious disobedience to the requirements of the administration of correctional institutions).
Thus, with the adoption of the legislative amendments, the Verkhovna Rada removed only one of the elements used for administrative offences that are fundamental to the criminal prosecution of convicts, while the shameful, punitive, and repressive norm of Article 391 of the Criminal Code remained unchanged.
Courts have not reviewed the materials; accordingly, convictions against convicts who were once held criminally liable under Article 391 of the Criminal Code on the basis of committing administrative misdemeanours in the form of refusal of extra room cleaning have not been overturned. Such convicts are still serving their sentences. This has led to systemic violations of Part 1 of Article 5 of the Criminal Code of Ukraine, which emphasises: ‘A law on criminal liability that decriminalises an act, mitigates criminal liability, or otherwise improves a person’s situation, has retroactive effect in time, i.e., it extends to persons who committed the relevant acts before such a law came into effect, including to persons who are serving or have served a sentence but have a criminal record.’
In addition, the administrations of sentence execution institutions still practise assigning administrative punishment (refusal of extra room cleaning) to pressure convicts, and even for criminal prosecution under the procedure of applying Article 391 of the Criminal Code. The elements of the crime under this article are formed by repeated refusals to perform duties by a convict, who is then subjected to administrative punishment in the form of placement in a CTR and charged with committing the crime provided for by the specified article of the Criminal Code.
Convict Kozmyk (the surname and name of the sentence execution institution have been changed to prevent the convict’s further persecution), born in 1975, is being held criminally liable under Article 391 of the Criminal Code for the fourth time in his life. Having received a six-year sentence assigned by the court, he was sent to serve his sentence at the Iziaslav Correctional Colony No. 58, where he was convicted under Article 391 of the Criminal Code—thus, the total term of his sentence became eight years and two months. He was transferred to serve the remainder of his sentence at the Berdychiv Correctional Colony No. 70, where he was again charged under Article 391 of the Criminal Code. This is despite the fact that almost all the administrative offences (of which there are more than two dozen) that served as the basis first for transferring the convict Kozmyk to a CTR, and then for bringing charges under Article 391 of the Criminal Code of Ukraine, consisted precisely in the convict’s refusal to do extra room cleaning. This occurred after the adoption of the legislative amendments mentioned above. Evidence that the convict is specifically refusing to clean the barracks where over 40 convicts live is provided by a video recording made by the institution’s administration, in which the convict explains his refusal by stating that such punishment is a humiliation of his honour and dignity.
Are any progressive changes possible in our state in the system of sentence execution, taking into account state obligations and declarative concepts regarding the transition of the penitentiary sector to the path of democratic reform, the creation of a ‘new-model prison’, and compliance with European standards? No, as long as the state philosophy of sentence execution remains unchanged, and as long as punitive-repressive legislative rhetoric remains in operation and actively applied, which allows for criminal prosecution for administrative misdemeanours and creates conditions for abuses of power where the state punishes or grants pardons at its own discretion.