Pardon Rules Remain Unchanged

The human rights organisation ‘Donetsk Memorial’ appealed to the President of Ukraine with a proposal to amend the Regulation on the Procedure for Exercising Pardons. The organisation set out its arguments in a letter to the President, which is provided below.
Among the proposed changes was granting the possibility for others, in addition to the convict, to petition for a pardon.
In the received response dated 10 June 2013, signed by I. Kozlov, Head of the Pardons Department of the Presidential Administration of Ukraine, it is asserted that the current Regulation complies with existing legislation and ‘does not create any obstacles to the realisation of convicts’ rights to a pardon.’ It is as if the proposals were submitted due to the existence of some mythical obstacles. Despite the polite tone of the response, the Head of the Department, I. Kozlov, provides no other arguments in favour of his position. Thus, his conclusion is unambiguous—the Presidential Administration does not wish to change anything in the Regulation on the Procedure for Exercising Pardons.

Letter from ‘Donetsk Memorial’ and the response to it

‘DONETSK MEMORIAL’
No. 120 of 31 May 2013
To the President of Ukraine
V. F. Yanukovych
Dear Mr President,
The pardon procedure in any country is an important factor that reflects the attitude of the head of state, who is authorised to exercise it, towards universal human values, primarily justice, mercy, and responsibility for one’s actions. In exercising the power of 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.
After your election as President, you approved a new version of the ‘Regulation on Pardons’ by Decree No. 902/2010 of 16 September 2010.
I am not sure whether you have familiarised yourself with the public and expert reaction to this new version of the regulatory document. At the very least, I am not aware of any statements, assessments, or remarks from you on this matter.
Of course, it would be incorrect to say that responding to expert opinions on the regulatory acts you adopt is your duty. But in any case, your reaction to such expert assessments, or the lack thereof, indicates your priorities and your attitude towards the opinions of representatives of the public and the expert community on issues that are of great public interest and concern the sphere of human rights observance.
In brief, the conclusion of the experts who felt it necessary to speak out is as follows: alongside positive innovations, the new version of the Regulation contains a number of points that diminish this regulatory act, and even bear signs of violating the requirements of Article 22 of the Constitution of Ukraine, which provides that new Laws may not narrow the scope of rights enjoyed by citizens. I do not think that the scope of rights can be diminished by Presidential Decrees. But, unfortunately, this is precisely what happened with your adoption of the aforementioned Decree No. 902/2010.
This is why the public human rights organisation ‘Donetsk Memorial’ initiated the preparation of a version of the Regulation on Pardons that eliminates the shortcomings remaining after the last revision of the Regulation. The bulk of the work on preparing this version was performed by experts from human rights organisations.
We are sending this version to you for consideration and hope that you and the specialists to whom you delegate this task will carefully consider our proposals and take them into account when improving this document. If these specialists believe that they understand this matter better and that the Regulation in its current form does not need changing, then we would like to hope for 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 Commission on Pardons. The election to the commission of exclusively representatives of state bodies (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 Chairman of the State Department of Ukraine for the Execution of Sentences—a total of eight civil servants) and the almost complete absence of representatives of the public (scientists, journalists, artists, athletes, human rights activists) leads one to believe not only that such responsibility cannot, in your view, be trusted to such representatives (as if a former prosecutor inspires more trust in you regarding questions of mercy than a human rights activist or journalist), but also suggests a perception that people’s deputies in our country understand questions of mercy and justice better than, for example, writers, artists, or doctors. However, a pardon, in our view, is first and foremost a moral act, and only then a legal one.
Once again, Mr President, allow me to express the hope that this appeal will not be ignored and that a meaningful, substantive response will be provided, which we promise to publish widely.
Please send your response to the following address:
P.O. Box 4836, Donetsk, 83092
Appendices:
1. Regulation on the Procedure for Exercising Pardons (draft);
2. Comparative table with proposed amendments to the Regulation on Pardons;
3. Explanatory note to the draft proposal for amendments to the Regulation on the Procedure for Exercising Pardons from ‘Donetsk Memorial’.
Respectfully,
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

Administration of the President of Ukraine
Department of Pardons
10.06.2013 No. 21-11/34 To No. 120 of 31.05.2013
To the Chairman of the Council of the human rights organisation
‘Donetsk Memorial’, O. BUKALOV

Dear Mr Oleksandr,
Your appeal regarding the necessity of amending the Regulation on the Procedure for Exercising Pardons, approved by Decree of the President of Ukraine No. 902 of 16 September 2010 (hereinafter—the Regulation), with the goal of expanding the circle of subjects who should have the right to petition for the pardon of convicts, as well as changing other provisions related to the pardon procedure, has been processed.
An analysis of the practice of considering pardon petitions shows that the result of a decision on the pardon of convicts depends not on the number and rank of petitioners, but, primarily, on the degree of severity of the crime, the circumstances of its commission, which, incidentally, are already established by the court sentence and do not require additional evidence, the term of the sentence served, and other factors provided for by the Regulation. In addition, the Department of Pardons, ensuring the comprehensive completeness of the consideration of relevant materials by the Commission under the President of Ukraine on Pardon Issues, has the right, in the prescribed manner, to request necessary materials and information from state bodies and local self-government bodies (the opinion on the expediency of a pardon, the material-household situation of the convict’s family, etc.).
Therefore, considering the sufficient volume of information necessary to make an objective decision on a pardon, as well as with the aim of avoiding possible abuses, the current Regulation grants the right only to convicts to initiate the procedure for considering pardon materials. At the same time, a convicted person also has the right to attach to their personal pardon petition any documents which, in their opinion, will be of significance for the decision on a pardon, including appeals from other petitioners. The administration of the correctional facility, upon the request of a convicted person, is obliged within fifteen days from the date of registration to send the pardon petition and the established list of documents, which also includes an extract from the medical record of the mentioned person, to the Administration of the President of Ukraine.
Based on the above, in our opinion, the Regulation complies with the current legislation of Ukraine and does not create any obstacles to the realisation of convicts’ rights to a pardon.
Simultaneously, we inform you that the proposals you submitted will be taken into account in the event of the development of a new version of the Regulation.
We are sincerely grateful to you for your active civic position and understanding.
Respectfully,
Head of the Department, I. Kozlov

01220, Kyiv, 11 Bankova St., tel. (044) 255-72-37