Why is it difficult to get released on parole?

Quite a few citizens approach the Public Human Rights Reception Office of the ‘Donetsk Memorial’ human rights organisation with questions regarding the application of parole (early release). They often have questions in connection with the refusal of colony administrations to provide their documents to the court to resolve the issue of their parole. Are such refusals always lawful? Does the administration justify such refusals with reasonable grounds?
First of all, it should be clarified who and under what conditions can initiate the consideration of the issue of applying for parole. Previously, this was the prerogative of the colony administration alone. After amendments were made to the Criminal Executive Code in January 2010, Article 107 on the rights of convicts was supplemented with a point according to which the convict themselves can
“apply to the administration with a request to submit a proposal for their early release from serving the sentence or for the replacement of the unserved part of the sentence with a milder one”.
It is better for the convict to make a request to consider the issue of being recommended for parole in writing — and the administration will be obliged to provide a written answer to such a request. This is especially important if they refuse to recommend the convict for parole.
In any case, the administration will be obliged to officially consider the request. And in the event of a refusal, they are obliged to justify their decision in writing. If their motives are based on the law, they will do so. But we know of many cases where the administration refuses to give any written answers to the requests of convicts — saying, there is no reason for you to have this. Some staff even threaten unpleasant consequences for those who insist on a written answer.
Why is it necessary to receive the decision (including a refusal) of the administration in written form?
Firstly, one can then obtain a clear understanding of the administration’s arguments. Secondly, one can then appeal such a decision.
But what if the administration does not wish to give a written answer to the convict’s request?
According to Clause 13 of Article 134 of the CEC, a convict may appeal a disciplinary penalty imposed. Furthermore, Article 107 of the CEC grants them the right to file complaints. However, without having the reason for the imposition of a penalty formulated in writing, the convict is deprived of the opportunity to correctly formulate their objections, arguments, and to draft a complaint. Thus, by refusing to provide convicts with written answers to their written requests, the administration unlawfully deprives them of the opportunity to appeal the decisions of the administration with which they do not agree.
A colony administration’s refusal to provide a written answer regarding a refusal to recommend for parole can be appealed to higher authorities or to the prosecutor’s office. But if a written refusal is obtained, the convict (or their representative, if they receive a relevant power of attorney from the convict) can appeal it both to higher management (for example, to the regional department of the penitentiary service) and to the prosecutor’s office or the court.
Furthermore.
Often the administration calls the very fact of applying for parole a ‘privilege’, i.e., something by which the administration supposedly rewards the convict for their behaviour, and they do this solely at their own discretion. This is, to put it mildly, not so.
Article 81 of the Criminal Code states
1. Parole from serving a sentence may be applied to persons serving a sentence in the form of... deprivation of liberty.
2. Parole from serving a sentence may be applied if the convict has proven their correction through conscientious behaviour and attitude to work.
It is obvious that there are no formulations in the code stating that this is a privilege. Rather, parole can be viewed as the right of the convict — upon their compliance with certain conditions — to be recommended for parole.
The most difficult and often contentious aspect is the assessment of evidence of a convict’s correction. How can one objectively assess whether they have truly proven their correction?
Legislation is imperfect and provides quite a wide scope for interpretations and assessments. At the same time, these interpretations of a convict’s measure of correction by the administration should not go beyond the bounds of the law and common sense.
Unfortunately, there are cases when the administration refused to recommend for parole because the convict could not prove their correction through work ‘throughout the entire term of serving the sentence’. It is surprising that the prosecutor’s office did not see any violations of the law in this. And meanwhile, the Criminal Code states:
“if the convict has proven their correction through conscientious behaviour and attitude to work.”
Therefore, the requirement ‘throughout the entire term of serving the sentence’ is an arbitrary act of the administration, not based on the law. Often, a convict does not work because the administration has not provided them with work. Responsibility for not working ‘throughout the entire term of serving the sentence’ in such a case is not correctly placed upon the convict.
Many problems also arise with how penalties and incentives are taken into account. Clause 14 of Article 134 of the CEC defines that if ‘within six months after serving a penalty, the convict is not subjected to a new penalty, they are recognised as not having any penalties’.
Often the administration, in refusing to recommend for parole, takes into account penalties issued more than six months ago, sometimes 2-3 or even 5 years ago.
Is this justified? From the point of view of common sense, hardly. If a person has had no penalties for, let us say, two or three years, that says something about their attitude to serving the sentence. And there is no law obliging the administration to take into account penalties older than six months.
On the contrary, there is the clear wording of Clause 14 of Article 134 of the CEC, cited above. Taking into account long-since removed penalties is also an arbitrary act of the administration.
Of course, the administration has the right to assess the measure of a convict’s correction and use certain criteria to do so. But these criteria should not be artificial or far-fetched. Therefore, arguments that 2-3-year-old penalties supposedly testify to the fact that the convict has not started on the path of correction look rather unnatural. And the reasons for refusal sometimes encountered — ‘because there are few incentives’ — sound downright mocking. That is, there are no penalties, there are incentives, but for parole there are… not enough of them. Considering the high corruption risk of the parole procedure, it is easy to assume the true motives for refusals behind such fantastic and unnatural reasons.
On such grounds, refusals to recommend for parole can be appealed to the court. If it is difficult for the convict to do this themselves, they can give a power of attorney to someone on the outside — a lawyer or a relative.
To sum up, one can say to convicts: if you want to be released on parole, prove your correction through behaviour and conscientious work. If, in your opinion, the institution’s administration is acting unfairly and unreasonably, try to defend your position in court or with the help of the prosecutor’s office.

Aleksandr Bukalov
‘Donetsk Memorial’