Pardons Under New Rules

To the President of Ukraine, V. F. Yanukovych

Dear Mr. President,
The procedure for granting pardons in any country is an important factor reflecting the attitude of the head of state, who is authorised to exercise this power, towards universal human values—first and foremost, towards justice, mercy, and responsibility for one's actions. In granting a pardon, the head of state relies on the fundamental rules and traditions that dominate society. Naturally, his actions contain both a legal component and a moral one.
Following your election as President, you approved a new version of the 'Regulations on Pardons' via Decree No. 902/2010 of 16 September 2010.
I am not sure whether you have familiarised yourself with the reaction of the public and experts to this new version of the regulatory document. At the very least, I am unaware of any statements, assessments, or remarks you may have made in this regard.
Of course, it would be incorrect to say that responding to expert opinions on regulatory acts you have approved is your duty. Nevertheless, your reaction to such expert assessments—or the lack thereof—testifies to your priorities and your attitude towards the opinions of representatives of the public and the expert community in matters that are of great public interest and concern the sphere of human rights observance.
In short, the conclusion of the experts who felt it necessary to speak out is as follows: alongside positive innovations, the new version of the Regulations contains a number of points that weaken this regulatory act and even bear signs of violating the requirements of Article 22 of the Constitution of Ukraine, which stipulates that new laws may not narrow the scope of rights enjoyed by citizens. I do not think that the volume of rights can be diminished by Presidential decrees. Yet, unfortunately, that is exactly what happened with your adoption of the aforementioned Decree No. 209/2010.
Precisely for this reason, the public human rights organisation 'Donetsk Memorial' initiated the preparation of a version of the Regulations on Pardons that eliminates the flaws remaining after the last revision of the document. The main work on preparing this version was carried out by experts from human rights organisations.
We are submitting this version for your consideration and hope that you and the specialists to whom you entrust this task will carefully review our proposals and take them into account when improving this document. If these specialists consider themselves better versed in this matter and believe that the Regulations in their current form do not require changes, we would hope to receive arguments as to why this or that proposal of ours is unacceptable.

I would also like to speak about the selection of members for the Pardon Commission. Electing exclusively representatives of state bodies to the Commission (six people's deputies, a former Prosecutor General, a Deputy Minister of Internal Affairs, the First Deputy Chairman of the Supreme Court of Ukraine, the First Deputy Minister of Justice of Ukraine, the Head of the State Department of Ukraine for the Execution of Sentences—a total of eight civil servants) and the near-total absence of representatives of the public (scientists, journalists, artists, athletes, human rights defenders) forces one not only to conclude that, in your view, such responsibility cannot be trusted to such representatives (as if a former prosecutor inspires more trust in matters of mercy than a human rights defender or journalist), but also to assume that in matters of mercy and justice, people's deputies in our country are better qualified than, for example, writers, artists, or doctors. However, in our view, a pardon is, first and foremost, a moral act, and only then a legal one.
Once again, allow me, Mr. President, to express the hope that this appeal will not be ignored and that a substantive response will be provided, which we promise to make widely public.
Please send your response to the following address:
P.O. Box 4836, Donetsk, 83092

Sincerely,
Oleksandr Bukalov
Chairman of the Council of the Human Rights Organisation 'Donetsk Memorial'
Deputy Chairman of the Regional Supervisory Commission under the Donetsk Regional State Administration

REGULATIONS
on the Procedure for Granting Pardons (Draft)

1. These Regulations define the procedure for granting pardons by the President of Ukraine in accordance with Clause 27 of Part 1 of Article 106 of the Constitution of Ukraine.
2. Pardons for convicted persons are granted in the form of:
commutation of a life sentence to imprisonment for a term of no less than twenty-five years;
full or partial release from serving both the principal and additional sentences;
replacement of a sentence or the unserved part thereof with a milder sentence.
3. The right to petition for a pardon is held by a person who:
has been convicted by a court of Ukraine and is serving a sentence in Ukraine;
has been convicted by a court of a foreign state and transferred to Ukraine for the service of the sentence without a condition regarding the non-application of a pardon, whose court verdict has been brought into compliance with the legislation of Ukraine;
has been convicted in Ukraine and transferred to a foreign state for the service of the sentence, provided that this state has agreed to recognise and execute the pardon decision adopted in Ukraine.
The parents of the convicted person, their spouse, children, legal representative, the Ombudsman for Human Rights, and public associations also have the right to petition for a pardon.
4. A petition for a pardon may be submitted after the verdict has entered into legal force, or in the case of proceedings in the cassation order—after a decision has been taken by the respective court.
In the case of a person sentenced to life imprisonment, a petition for their pardon may be submitted after they have served no less than twenty years of the assigned sentence.
5. A person who has previously been convicted repeatedly (two or more times) for intentional crimes, or to whom an amnesty, pardon, parole, replacement of the unserved part of a sentence with a milder one, or release from serving a sentence on probation has been applied, if they committed another intentional crime before the conviction was expunged or removed, may be pardoned only in exceptional cases.
6. [Deleted].
7. A petition for a pardon by a person convicted by a court of Ukraine who is serving a sentence in Ukraine, or by a person convicted by a court of a foreign state and transferred to Ukraine for the service of the sentence without a condition regarding the non-application of a pardon, is submitted through the administration of the penal institution or other body executing criminal sentences. The administration registers the petition in the established manner on the day of its submission and, within fifteen days from the day of submission, sends it to the Administration of the President of Ukraine:
- together with copies of the court verdict, ruling, and resolution;
- a character reference regarding the person's behaviour and attitude towards work during the serving of the sentence, with the administration's opinion set out in writing;
- a certificate regarding the convicted person’s state of health;
- and, upon the request of the bodies authorised to consider pardon petitions, the supervisory commission or the juvenile affairs service regarding the expediency of the pardon;
- as well as other documents and data relevant to the consideration of the issue of applying a pardon.
8. Preparation of materials for the consideration of a pardon petition and notification of the applicant regarding the results of such consideration is carried out by the Pardon Department of the Administration of the President of Ukraine (hereinafter—the Department).
For the performance of the tasks assigned to it, the Department has the right, in the established manner, to request and receive from state bodies, local self-government bodies, and penal institutions the documents, materials, and information necessary for the consideration of a pardon petition.
9. During the consideration of a pardon petition, the following are taken into account:
- the degree of gravity of the committed crime;
- the term of the sentence served;
- the degree of the person's social danger;
- the person's behaviour during the serving of the sentence;
- the status of compensation for damage caused or the remedy of harm inflicted;
- the opinion of the administration of the penal institution or other body executing the sentence;
- the opinion of public organisations and, upon the request of bodies authorised to consider pardon petitions, the supervisory commission or juvenile affairs service regarding the expediency of a pardon;
- other circumstances that may be relevant when considering the petition.
10. A pardon petition and the materials prepared by the Department are preliminarily considered by the Commission under the President of Ukraine on Pardon Issues (hereinafter—the Commission).
The Commission is formed by the President of Ukraine consisting of a chairperson, two deputy chairpersons, and members of the Commission.
Appointed to the Commission (with their consent) are representatives of the fields of culture, religion, public associations, employees of scientific institutions specialising in the field of law, deputies of the Verkhovna Rada of Ukraine, and representatives of government bodies.
One of the deputy chairpersons of the Commission is the Head of the Department, ex officio. The duties of the Commission Secretary are performed by one of the members of the Commission.
The organisational form of the Commission’s work is meetings, which are convened no less than once every two months and are conducted by the Chairperson of the Commission or, in their absence, by one of the Deputy Chairpersons.
A meeting of the Commission is quorate if a majority of its members are present.
Commission decisions are made by a vote of the majority of the members present at the meeting. In the event of an equal distribution of votes, the vote of the person presiding over the meeting is decisive.
Summarised information on the results of the Commission’s activities is periodically (no less than once every six months) made public.
11. The Department reports to the Commission on circumstances that may impede the satisfaction of a petition.
12. The Commission’s proposals based on the results of the preliminary consideration of pardon petitions are formalised in a protocol signed by the Chairperson and the Secretary of the Commission.
13. Based on the results of the preliminary consideration of pardon petitions and materials prepared by the Department, the Commission submits proposals to the President of Ukraine regarding the application of a pardon.
14. For the pardon of a convicted person, the President of Ukraine issues a decree, which is published in the order established by law.
15. In the event that the Commission rejects a pardon petition, a repeat petition regarding a person sentenced to life imprisonment may, in the absence of new noteworthy circumstances, be submitted for the Commission’s consideration no earlier than five years later, and regarding other convicted persons—as a rule, no earlier than six months from the time the previous petition was rejected. A repeat petition received before the expiry of these periods is returned to the applicant with the appropriate explanation.
The convicted person and the persons who petitioned for the pardon are notified of the rejection of the petition and its motives no later than one month after the relevant decision is made.
16. Decrees of the President of Ukraine on the pardon of convicted persons are sent for execution to:
for persons serving sentences in penal institutions or bodies—the State Penitentiary Service of Ukraine;
for persons released from additional sentences—the respective courts;
for persons sentenced to detention in a disciplinary battalion for military personnel, to service restrictions for military personnel, or to deprivation of military ranks—the Ministry of Defence of Ukraine;
for other persons—the respective ministries and other central executive government bodies.
Furthermore, decrees of the President of Ukraine on the pardon of convicted persons are sent to the Ministry of Internal Affairs of Ukraine for informational purposes, and to other state bodies to ensure the social adaptation of persons who have served their sentences.
17. The bodies entrusted by these Regulations with the execution of the President of Ukraine’s decrees on the pardon of convicted persons report on their execution to the Administration of the President of Ukraine.
18. Supervision over the execution of the President of Ukraine’s decrees on pardons is carried out by the Commission.

EXPLANATORY NOTE

to the draft proposals for changes to the 'Regulations on the Procedure for Granting Pardons'
from 'Donetsk Memorial', May 2013
The current 'Regulations on the Procedure for Granting Pardons' were approved by Decree of the President of Ukraine No. 902/2010 dated 16 September 2010. The Regulations define the procedure for the exercise of the pardon power by the President of Ukraine in accordance with Clause 27 of Part 1 of Article 106 of the Constitution of Ukraine.
These Regulations have been changed repeatedly over the last eight years. The result has been both improvements to certain provisions and deterioration in others.
The experience of applying various versions of the Regulations, as well as some recent examples of their application, testify to the urgency and relevance of introducing a number of important changes. These proposed changes are aimed at eliminating incorrect norms that unjustifiably and unmotivatedly narrow the limits of the President's powers, promoting greater transparency in the Commission's activities, and increasing public awareness of the Commission’s work results. These proposals remove obstacles to the application of pardons without violating the norms of the Regulations and increase the level of compliance of its activities with the goal of creating the institution of pardon.
These proposals were prepared on the initiative of the public human rights organisation 'Donetsk Memorial' by experts from various human rights organisations and specialists in the field of the penal system.
It is proposed to introduce the following changes to the current edition of the Regulations:
Cl. 3. In light of the precedent with the pardon of Y. Lutsenko, which took place upon the petition of the Ombudsman for Human Rights—which is not actually provided for by the Regulations—it is appropriate to expand the circle of persons who may petition for a pardon. Such a norm in no way affects the President's right to satisfy or reject a petition. At the same time, it will bring this norm of the Regulations into line with practice and the needs of society. Such an expansion will allow for avoiding violations of the Regulations in the future.
Cl. 6.
This point should be excluded.
All the conditions and caveats mentioned in this point regarding the specified groups of convicts can be set out in the convict’s character reference and the administration's opinion; therefore, there is no need to single out these categories of convicts. Singling them out is not strictly mandatory. In a certain sense, such segregation acts as a limitation on the President in making a decision regarding a pardon.
Cl. 7. It is worth clarifying the terms for registering a petition by adding the words 'on the day of its submission'.
It is appropriate to remove the clarification 'detailed' regarding the character reference, as it is non-obligatory and non-legal. A character reference must be sufficiently thorough in any case, and focusing attention on its 'detail' is an expression of distrust in the competence of the institution's administration. It is appropriate to remove from the Regulations the separate requirement to indicate the convicted person’s attitude towards work in the attached documents. The content of the character reference should be determined by the institution’s administration, and it is inappropriate to limit it with instructions, including on indicating one's attitude towards work. This detailing of the character reference content is redundant (for additional information on indicating one's attitude towards work, see the remarks on Cl. 9).
Since the state of health of a convicted person can have important significance as a factor in making a decision regarding a pardon, the list of documents attached to a pardon petition should be supplemented with a requirement to provide a certificate of health status.
Cl. 9.
Conditions for making a decision regarding a pardon such as 'sincere repentance' or 'active assistance in solving the crime' appear unjustified and inappropriate. These circumstances can be reflected in the character reference. The condition regarding one's 'attitude towards work before conviction' is artificial and contradicts common sense. As for one's attitude towards work in a colony, taking it into account when deciding on a pardon should undoubtedly be done. However, merely considering one's behaviour would be sufficient in practice to account for the conscientious work of those who deserve it, without casting aside those who—exercising the dispositive nature of their rights—did not use them and did not work. One should consider the lack of proper working conditions in many institutions, or the total absence of job vacancies.
The inclusion among those whose opinion should be considered of 'local executive bodies and local self-government bodies' is unjustified and artificial. The mention of 'labour collectives' is completely superfluous, as today—unlike at the end of the 80s—they do not exist as subjects of legal relations. The requirement to take into account 'the person of the convict' when deciding on a pardon is inappropriate, as this concept is quite vague. According to the definition of domestic criminologists, 'a criminal's personality is the sum of socially significant characteristics, traits, connections, and relationships that characterise a person guilty of violating criminal law, in combination with other (non-personal) conditions and circumstances that influence their criminal behaviour'. Therefore, the category of 'person' can include political views, attitudes towards the law enforcement system, etc., which may not always be a neutral characteristic when deciding on a pardon. Thus, it would be more acceptable and appropriate in this context to write that one takes into account 'the degree of the person's social danger'.
The expediency of taking into account the position of executive or local self-government bodies when assessing the appropriateness of a pardon is highly questionable.
The requirement in the Regulations to necessarily consider the positions of executive or local self-government bodies is, to a certain extent, an unjustified narrowing of the President's powers in choosing a decision. Removing them from the mandatory list will expand the scope for the President's expression of will when choosing a decision.
These circumstances can perfectly well be indicated in the character reference.
Cl. 10.
A pardon is an act that is largely based on moral factors and mercy. There is a lack of these values in society. Therefore, trust in any body depends to a certain extent on the level of authority and morality of its members. It is our deep conviction that the level of trust in the fairness of the Pardon Commission's decisions and in the President will be higher if candidates from the proposed social and professional groups are elected to its membership.
Therefore, it seems important to outline which representatives of social and professional groups should be included in the Commission.
It would be appropriate to outline the frequency of the Commission's meetings.
Furthermore, regular periodic information of society about the Commission's activities is of the utmost importance. A period of six months is an optimal frequency for this.
Cl. 11.
Deciding whether a petition is subject to satisfaction or not is not the prerogative of the Commission, as the Commission has no right to decide this; therefore, the existing version of this point is not entirely correct, and it unjustifiably limits the President's powers. It is better to replace it with the one proposed.
Cl. 13.
The same conflict exists—the Commission cannot have the authority to decide whether there are sufficient grounds for a pardon, and thus decide the fate of the petition, thereby narrowing the President's constitutional powers.
Cl. 15.
Freedom is a value of such magnitude that waiting a year for a repeat attempt to apply for a pardon is too harsh, unjustified, and inexpedient. The rule that previously existed—six months—should remain.
It is necessary to ensure the mandatory notification of the subjects who submitted the petition regarding the results of their consideration and to provide that:
The convicted person and the persons who petitioned for the pardon are notified of the rejection of the petition and its motives no later than one month after the relevant decision is made.
Cl. 16.
It is necessary to account for the change in the name of the agency from the 'Department for the Execution of Sentences' to the 'Penitentiary Service'.