Should Women Be Punished with Life Imprisonment?

The human rights organisation ‘Donetsk Memorial’ has submitted a proposal to abolish the criminal punishment of life imprisonment for all women. A corresponding appeal was sent to the President of Ukraine, the Ministry of Justice, and the Committees of the Verkhovna Rada of Ukraine.
Currently, the relevant provision of Part 2 of Article 64 of the Criminal Code of Ukraine contains the following restriction on the application of life imprisonment:
‘Life imprisonment is not applied to persons who committed crimes at the age under 18 and to persons over the age of 65, as well as to women who were pregnant during the commission of the crime or at the time of the passing of the sentence.’
This list is based on humanity, respect for human life, and generally recognised human values, rather than specific norms of laws that provide for a prohibition of punishment in the form of life imprisonment for these groups of people.
As of 1 July 2013, 23 women are serving life sentences in Ukraine.
How did state institutions treat the ‘Donetsk Memorial’ initiative and its proposals, which are based on the same foundations as the existing restrictions?
For state institutions, the ‘Donetsk Memorial’ initiative became a kind of test of humanity.
The President of Ukraine did not express his position.
The Ministry of Justice treated it wonderfully. Its position is simple: equality of men and women is legislatively enshrined in Ukraine. So, let women serve life sentences too.
True, in its letter, the Ministry of Justice refers to Article 6 of the Law of Ukraine ‘On Ensuring Equal Rights and Opportunities for Women and Men’, which notes that ‘the following shall not be considered discrimination based on sex: special protection of women during pregnancy, childbirth, and breastfeeding; mandatory compulsory military service for men as provided by law; the difference in retirement age for women and men as provided by law; special requirements for the occupational health and safety of women and men related to the protection of their reproductive health; positive actions.’
And although, considering the title of the Law, serving a life sentence is neither a ‘right’ nor an ‘opportunity’ for women, the Ministry of Justice uses this reference to seemingly argue that the abolition of life imprisonment for women is ‘forbidden’ by law (not allowed, not provided for).
The Ministry of Justice does not want to consider the proposed abolition as a ‘positive action’ provided for in the law either. Thus, the Ministry of Justice still perceived the proposal to abolish life imprisonment for all women as discrimination. Perhaps with the arrival of a woman at the helm of the Ministry of Justice, the standards of attitude towards discrimination within it will shift in a humane direction.
The response from the State Penitentiary Service was surprising. Pleasantly surprising. The department reports:
‘In 2013, the SPtS of Ukraine prepared proposals for the draft Law of Ukraine "On Amendments to the Criminal and Criminal-Executive Codes of Ukraine regarding the humanisation of criminal punishments," which provided for the abolition of life imprisonment for women. These proposals were submitted to the Ministry of Justice of Ukraine for consideration.’
As far as I am aware, the Human Rights Commissioner is also favourably disposed towards such a proposal.
The Ministry of Justice’s argumentation ‘in all its glory’ and the position of the State Penitentiary Service are provided below in the appendices. In the meantime, on one side of the scales is the opportunity to change the lives of several dozen women (today, 23 of them) who, most likely, committed terrible crimes—so terrible that a punishment of 15 years’ imprisonment, in the opinion of the judges, was not enough. And in this case, they will have no hope for changes in their lives—they will be considered socially dangerous even after 20 or 30 years.
On the other side of the scales is the understanding of discrimination as a prohibition for women to have the possibility of a slightly higher level of humanity, as well as the holy feeling of revenge, which no longer leaves room on the scales of mercy.
In 1999, Ukraine took a serious and significant step by abolishing the death penalty, thereby valuing human life and asserting that taking the life of someone who has deprived others of their life is not worthy of human dignity.
Today, a new crossroads is proposed, a new test for the state institutions of Ukraine, for society.

Appendices.
‘DONETSK MEMORIAL’
No. 116 of 22 May 2013
To the President of Ukraine, V. F. YANUKOVYCH

Dear Mr President,
Allow me to draw your attention to the problem of detaining women sentenced to life imprisonment.
To date, more than 60 citizens annually receive a life imprisonment sentence. As of 1 January 2013, more than 1,800 life-sentenced persons are held in places of deprivation of liberty, including 21 women.
Conditions for life-sentenced prisoners in Ukraine are extremely harsh. The first relaxation of their detention regime can be applied only after serving 10 years of imprisonment and, moreover, ‘with conscientious behaviour and attitude towards work.’
The chance to file a pardon petition arises for a life-sentenced prisoner only after serving 20 years of the sentence. In our view, such ‘light at the end of the tunnel’ is more a figure of speech than a real factor influencing the behaviour of life-sentenced convicts and which could stimulate a person to change for the better and hope for something in life.
The extremely severe conditions in which life imprisonment takes place, in particular, the lack of long-term visits and the absence of useful activity—all this hardly contributes to achieving the main goal of imprisonment: the correction of the convicted person. Moreover, women are psychologically more vulnerable than men, and it is much harder for them to endure being in confinement.
An approach where extreme, most severe punishments are not applied to vulnerable categories of citizens—regardless of the severity of the crime—is fully justified. In particular, this is why the provision of Part 2 of Article 64 of the Criminal Code of Ukraine, which defines that ‘life imprisonment is not applied to persons who committed crimes at the age under 18 and to persons over the age of 65, as well as to women who were pregnant during the commission of the crime or at the time of the passing of the sentence,’ is fully justified.

World experience shows that prolonged stays in confinement very often lead to the degradation of the individual. In the conditions of Ukraine, there is no socially important and justified goal for applying life imprisonment to women.
We are convinced that the possibility of repentance for such criminals must become a more significant value in our society than revenge or punishment.
We also believe that the presence or absence of life-sentenced women in the country is a measure of a society’s cruelty.
We consider it justified and humane not to imprison women for life at all.
In connection with the above, we propose changing the approaches to the maximum severity of punishment for women for grave crimes and abolishing the application of life imprisonment for them.
To this end, we propose that you, as a subject of legislative initiative, submit proposals to amend Part 2 of Article 64 of the Criminal Code of Ukraine and provide that life imprisonment is not applied to any women.
At the same time, we propose pardoning all 21 women currently serving life sentences and replacing their punishment with imprisonment for a limited term, depending on the severity of the crimes they committed. This will positively influence their psychological state and reduce the risk of them committing illegal actions and deeds.
We also believe that pardoning all women serving life sentences will allow Ukraine to become a country where there will be not a single woman serving a life sentence.
Such decisions will have a positive impact on society and on citizens.
We hope that our proposals will be positively perceived by you, Mr President, and will become an impetus for changes in the sphere of executing such a specific punishment as life imprisonment.
Oleksandr BUKALOV
Chairman of the public human rights organisation ‘Donetsk Memorial’
Deputy Chairman of the Regional Supervisory Commission under the Donetsk Regional State Administration

MINISTRY OF JUSTICE OF UKRAINE
25.06.2013 No. 5293-0-4-13/6.1

Donetsk public human rights organisation ‘Donetsk Memorial’
To O. P. Bukalov

The Ministry of Justice, in accordance with the letter of the Secretariat of the Cabinet of Ministers of Ukraine dated 01.06.2013 No. 21407/1/1-13, has reviewed the appeal of the Donetsk public human rights organisation ‘Donetsk Memorial’ and reports the following.
The appeal proposes amending Article 64 of the Criminal Code of Ukraine to make it impossible to apply the criminal punishment of life imprisonment to women who have committed especially grave crimes.
In this regard, it should be noted that the principle of the rule of law is recognised and operates in Ukraine.
The Constitution of Ukraine has the highest legal force. Laws and other regulatory legal acts are adopted on the basis of the Constitution of Ukraine and must comply with it (Part 1, Part 2 of Article 8 of the Constitution of Ukraine).
Article 24 of the Basic Law establishes that citizens have equal constitutional rights and freedoms and are equal before the law.
There shall be no privileges or restrictions based on race, skin colour, political, religious, or other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics.
Equality of rights for women and men is ensured by: providing women with equal opportunities with men in socio-political and cultural activities, in obtaining education and professional training, in work and remuneration for it; special measures for the protection of women’s labour and health, and the establishment of pension benefits; creating conditions that give women the opportunity to combine work with motherhood; legal protection, material and moral support for motherhood and childhood, including the provision of paid leave and other benefits to pregnant women and mothers.
Moreover, in development of the indicated article of the Constitution of Ukraine, the Verkhovna Rada of Ukraine adopted the Law of Ukraine ‘On Ensuring Equal Rights and Opportunities for Women and Men’, the goal of which is the achievement of a parity position for women and men in all spheres of society’s life through the legal provision of equal rights and opportunities for women and men, the elimination of discrimination based on sex, and the application of special temporary measures aimed at eliminating the imbalance between the opportunities of women and men to realise the equal rights granted to them by the Constitution and laws of Ukraine.
According to the fourth paragraph of Article 1 of this Law, discrimination based on sex is actions or inaction that express any distinction, exclusion, or privileges based on sex, if they are aimed at limiting or making impossible the recognition, enjoyment, or exercise on an equal basis of human rights and freedoms for women and men.
Article 6 of the said Law establishes that discrimination based on sex is prohibited. The following are not considered discrimination based on sex: special protection of women during pregnancy, childbirth, and breastfeeding; mandatory compulsory military service for men as provided by law; the difference in retirement age for women and men as provided by law; special requirements for the occupational health and safety of women and men related to the protection of their reproductive health; positive actions.
It should also be noted that the organisational-legal foundations for prevention and counteraction to discrimination with the goal of ensuring equal opportunities regarding the realisation of human and citizen rights and freedoms are defined by the Law of Ukraine ‘On Principles of Prevention and Counteraction to Discrimination in Ukraine’.
In accordance with Article 4 of the said Law, the action of this Law extends to all persons located on the territory of Ukraine.
The action of this Law extends to the following spheres of social relations: socio-political activity; state service and service in local self-government bodies; justice; labour relations; healthcare; education; social protection; housing relations; access to goods and services; to other spheres of social relations.
In addition, the Decision of the Constitutional Court of Ukraine of 02 November 2004 No. 15-rp/2004 determined that one of the basic principles of law is justice, a separate manifestation of which is the issue of the proportionality of punishment to the committed crime. The category of justice provides that punishment for a crime must be commensurate with the crime. This means not only that the *corpus delicti* and the limits of punishment provided for by law correspond to one another, but also that the punishment must be in a fair proportion to the severity and circumstances of the act committed and the person of the offender. The adequacy of the punishment to the degree of severity of the crime stems from the principle of a state of law, from the essence of constitutional human and citizen rights and freedoms.
Considering the above, the proposal to amend Article 64 of the Criminal Code of Ukraine is not supported by the Ministry of Justice.

Deputy Minister—Chief of Staff, A. Yu. Siedov

STATE PENITENTIARY SERVICE OF UKRAINE
(SPtS of Ukraine)
81 Melnykova St., Kyiv, 04050 tel./fax 461-86-00,
27.06.2013 No. 6/4-137-6.01/37-13

To the Chairman of the Council of the Donetsk public historical-educational and human rights charitable organisation ‘Donetsk Memorial’, O. P. Bukalov

Dear Oleksandr Pavlovych,
The SPtS of Ukraine has reviewed your appeal, received from the Cabinet of Ministers of Ukraine, regarding the possibility of pardoning women sentenced to life imprisonment.
According to Part 7 of Article 151 of the Criminal-Executive Code of Ukraine, a person sentenced to life imprisonment may submit a pardon petition after serving 20 years of imprisonment. At the present time, 23 women sentenced to life imprisonment are serving sentences in Ukraine. None of them has served the term of imprisonment necessary to obtain the right to file a pardon petition.
We inform you that in 2013, the SPtS of Ukraine prepared proposals for the draft Law of Ukraine ‘On Amendments to the Criminal and Criminal-Executive Codes of Ukraine regarding the humanisation of criminal punishments’, which provided for the abolition of life imprisonment for women. These proposals were submitted to the Ministry of Justice of Ukraine for consideration.
Simultaneously, we inform you that in accordance with the Regulation on the Procedure for Exercising Pardons, Decree of the President of Ukraine of 16 September 2010 No. 902/2010, the right to petition for a pardon belongs exclusively to the convicted person.
Respectfully,
Head of the Department of Criminal-Executive Inspection and Social-Psychological Work with Convicts
Yanchuk O.B.