Amendments to the Criminal-Executive Code of Ukraine

Oleksandr Bukalov, ‘Donetsk Memorial’

The amendments to the Criminal-Executive Code of Ukraine introduced by the Verkhovna Rada of Ukraine on 8 April 2014 are arguably the most extensive since the adoption of this Code in 2003. Up to a hundred amendments have been made; they vary in scale, but on the whole, they noticeably humanise the conditions of serving sentences in places of confinement. A significant portion of them—nearly a quarter—were proposed by the human rights organisation ‘Donetsk Memorial’. They were prepared in recent years with the participation of experts and partner non-governmental organisations.
The proposed review describes only some of the innovations contained in the adopted Law. Their implications are not always obvious, and therefore comments on certain amendments are offered.

Among the most important changes is the addition to Part 1 of Article 8 and, in greater detail, the new wording of Article 122 of the Code. This concerns the newly established opportunity to process pensions for convicts if they become eligible while serving their sentence. Previously, they had no such right.
This right is now formalised in Part 1 of Article 8 of the Code: ‘1. Convicts have the right: … to social security, including the processing of pensions.’
The new wording of Article 122 details the procedure being introduced:
‘1. Convicts have the right, on general grounds, to state pension provision based on age, disability, loss of a breadwinner, and in other cases provided by law. Pensions for convicts… shall be appointed by the bodies of the Pension Fund of Ukraine at the place of sentence service.
3. A person who, during the service of a sentence, has acquired the right to a pension… shall submit to the administration of the correctional facility a petition to ensure the necessary conditions for the appointment of their pension at the location of said correctional facility, including a request to summon representatives of the Pension Fund of Ukraine and for the official receipt by them, in the prescribed manner, of necessary documents directly from the person serving the sentence…
The administration of the correctional facility shall, no later than 30 days from the day of registration of the petition of the person who has acquired the right to the appointment of a pension…, ensure a meeting between the convict and a representative of the Pension Fund of Ukraine and comprehensively facilitate the proper processing and submission of relevant documents by them.
Travel expenses of representatives of the Pension Fund of Ukraine for conducting activities related to the processing of necessary documents shall be compensated… at the expense of the pensions subsequently received by the relevant persons serving the sentence.’
Another important change concerns the inclusion of time worked by a convict in confinement in the length of service for the appointment of a retirement pension. Since colonies do not make contributions to the Pension Fund for convicts, their work time in confinement was previously taken into account only after the citizen themselves made the required contributions to the fund after their release. Now, this condition has been removed, and Part 4 of Article 122 reads as follows: ‘4. Time worked by convicts during the period of serving their sentence in the form of deprivation of liberty is credited towards the length of service for the appointment of a retirement pension.’
The situation is worse for convicts who have lost their ability to work while serving their sentence. As before, they have the right to a pension and compensation for harm only after their release from the sentence. (Part 5 of Article 122 of the CEC)
It is very important that the list of structures to which convicts may apply confidentially with their suggestions, statements, and complaints (the Verkhovna Rada Commissioner for Human Rights, the European Court of Human Rights, the prosecutor) has been expanded to include national courts (Part 4 of Article 113), and such appeals are not subject to review by the facility’s administration.
An important amendment has been made to Part 1 of Article 121, which previously provided that the ‘cost of food, clothing, footwear, linen, communal-domestic, and other provided services’ was to be reimbursed from the accrued earnings, pensions, and other income of convicts. From now on, this article provides for the reimbursement of only the cost of communal-domestic and other provided services. Accordingly, there are no longer grounds for the colony to deduct the cost of food, clothing, footwear, and linen from a convict’s income.
Another provision contained in this article regarding the reimbursement of the colony’s expenses for a convict’s maintenance has also been repealed. Part 3 of Article 121 provided that, in the absence of funds in a convict’s personal account, the colony had the right to file a lawsuit against them through the court. Now, this provision has been completely excluded from the Code, and convicts no longer face lawsuits regarding this matter.
Finally, a contradiction regarding the mandatory nature of work for convicts has been eliminated. On one hand, the provision of Article 107 enshrines the right of convicts to work; on the other hand, Article 118 stated that convicts ‘must work’. Now, Article 118 also records that convicts have the right to work, rather than an obligation. And they may be engaged specifically in ‘paid’ work, rather than as previously provided—simply ‘being engaged in work.’
The provision of Article 120, which determined the minimum funds to be left in the personal accounts of working convicts, has been changed: previously, it was no less than 15% of the accrued monthly earnings; now, it is no less than 25%. However, the condition for this credit—‘fulfilment of the production quota and no breaches of the regime’—remains. That is, it should be understood that if the quota is not met, or if met but a breach of the regime is committed, then apparently this percentage may be different. What exactly it would be is not stated anywhere.
The possibilities for monitoring places of detention by representatives of government authorities and the public have been noticeably expanded and detailed. This occurred after Article 24, which regulates access to colonies for representatives of government authorities and the public, underwent significant changes. In the previous wording of this article, only specifically defined individuals—the President, the Minister of Justice, and other listed officials in their personal capacity—had the right to visit correctional facilities without special permission. Now, in the new wording, individuals authorised by them—from two to five people each—also receive such a right to visit on their behalf.
Furthermore, in addition to the People’s Deputies themselves, as was the case previously, their assistant-consultants now receive the same equal right.
Moreover, the law now provides that visits may be conducted ‘at any time, without hindrance’ for the purpose of ‘exercising control and conducting inspections (at their discretion—accompanied by up to three medical professionals for the medical examination of convicts and up to two representatives of the mass media).’
According to the new wording of the article, besides them, members of public councils under the central executive body… and its territorial units—within the relevant territory—have the same access.
The conditions for visitors staying in a correctional facility are also detailed in the law.
When visiting correctional facilities, the persons mentioned above, as well as media representatives, have the right to move freely and without time restrictions throughout the territory of the colonies, with maximum assistance provided by the staff and administration, to make audio and video recordings and disseminate the obtained information, to familiarise themselves with records, including statistical ones, to conduct inspections, to appeal against unlawful actions (inaction) of officials and employees of the colonies, to demand the immediate cessation of such actions and the holding of guilty persons accountable (with a subsequent exhaustive written report to the relevant person regarding the taken (or not taken) measures of accountability within 10 days from the day of receipt of the demand), to familiarise themselves with convicts’ personal files, and to communicate with any colony staff and convicts (including under conditions of anonymity).
The Code also contains an important caveat: the regime in the colonies must not hinder or be used as an obstacle to the implementation of powers by the subjects of control.
To avoid a possible influx of those wishing to visit ‘behind barbed wire’, a restriction has been introduced: no more than 10 people, including medical staff providing accompaniment and media representatives, may be present in one colony at the same time. If more arrive, priority is given to those who entered the colony earlier.
The phrase ‘lawful demands of the administration’, used in the context of convicts violating regime requirements, previously ran throughout the Code. But in practice, this phrase was often interpreted by the administration quite broadly: whatever a colony worker demanded was ‘lawful’, and it was backed by nothing more than the worker’s confidence in their own ‘lawfulness’. The vagueness and lack of specificity in the wording allowed staff to exploit this lack of clarity and was a source of tension and even conflicts with convicts.
Now in the Code, primarily in Part 1 and Part 2 of Article 9 and in Article 107, which defines the rights of convicts, this phrase sounds somewhat different—‘demands established by legislation’. Henceforth, the colony administration has the right to impose disciplinary measures on convicts for non-compliance only with those of its demands that are unambiguously designated in the law. The field for broad (and arbitrary) interpretation of legislative requirements by the facility administration is significantly narrowed.
Article 93, which regulates the department’s choice of the place where a convict is sent to serve their sentence, has also undergone some changes: now it can be determined not only by the place of residence of the convict themselves before conviction but also—which was not the case previously—by the place of permanent residence of their relatives.
A whole series of amendments in the Code effectively takes away the right of the colony administration and staff to make certain decisions at their own discretion and imperatively prescribes what they are required to do.
Thus, in the first paragraph of Part 1 of Article 101, regarding the transfer of convicts who have embarked on the path of correction, it was previously allowed that those who ‘have embarked on the path of correction may be transferred…’ and so on, which meant they could also NOT be transferred—it was up to the administration. Now, the norm requires an unambiguous action from the facility administration—they ‘are transferred’, and other options are not provided.
Similar adjustments have been made in a number of other articles of the Code.
Another vague formulation is being clarified: Clause 1, Part 2 of this same Article 101 provided that persons ‘who maliciously violate the requirements of the regime’ are not transferred to social rehabilitation units. Now, this norm more specifically designates the circle of such persons—these are ‘persons who have unremitted or unexpunged… disciplinary penalties, designated in paragraphs 4, 6–10 of Article 132 of this Code, within the term provided by Article 134 of this Code.’ Furthermore, the group of those ‘convicted for crimes in the sphere of trafficking in narcotic drugs, psychotropic substances, their analogues, or precursors’ has been excluded from the number of such ‘non-transferable’ persons.
If previously the colony administration had the right to destroy items confiscated from a convict that were prohibited for use in the colony (Part 7 of Article 102), now it can only petition for the ‘investigating judge to consider the issue of confiscating such items or transferring them for storage until the convict is released.’ Part 2 of Article 114, which allowed the facility administration to seize and sell, by court decision, money found in parcels, registered letters, and packages addressed to a convict for the state’s revenue (according to the former Part 4 of Article 59), has also been excluded from the Code. In the new wording of the Code, in the relevant point of Article 59, the mention of the seizure of money is absent.
The range of publications that convicts are allowed to keep with them has been slightly expanded (Part 3 of Article 109)—if previously the maximum number of ‘ten copies’ included both books and magazines, from now on it refers only to books, while magazines, as well as newspapers, can be kept in unlimited numbers.
According to Part 2 of Article 59, persons sentenced to restriction of liberty have the right, among other things, to wear civilian clothing, to have portable personal computers and accessories with them, money, mobile phones and accessories, and to use money without restrictions.
Persons located in the social rehabilitation unit (Part 2 of Article 99) have the same rights, including the right to computers, but instead of the right to have mobile phones, they can only use mobile communication services. The procedure for use is not specified; apparently, it will be regulated by a subordinate document.
Mobile phones and Internet access are also discussed in another article.
Part 5 of Article 110 establishes that ‘convicts are granted, including during their stay in stationary healthcare facilities, the right to telephone conversations (including on mobile networks) without limitation on their number, under the control of the administration, as well as to use the global Internet… Telephone conversations and use of the global Internet are paid for from the personal funds of the convicts.’
In Part 1 of Article 142, which defines the residence of women sentenced to deprivation of liberty outside a correctional colony, one of the conditions for permitting such residence was a ‘conscientious attitude towards work.’ But since work in colonies is often unavailable now, an amendment has been made taking this situation into account. Now, a conscientious attitude towards work is considered only in cases where it is available. Furthermore, when considering this issue by the administration, such residence for a woman ‘is permitted’ (instead of ‘may be permitted’, which allowed the administration the option to NOT permit it).
The circle of rights for convicted women who are permitted to reside outside the correctional colony is also becoming wider: they may not only ‘wear clothing accepted in civilian life, have money and valuables with them’ (as was previously the case), but now they may also ‘have mobile phones and accessories with them’ (Paragraph 3, Part 2 of Article 142). And, of course, ‘use mobile communication services at their own expense’ (Paragraph 4, Part 2 of Article 142).
The conditions for the confinement of life-sentenced persons are changing significantly.
The most significant change is the provision of long-term visits with close relatives (spouses, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren). The frequency of long-term visits is once every three months. Moreover, they may also be granted to spouses who lived together as a family but were not married, provided they have common minor children. Life-sentenced prisoners can now receive short-term visits on a monthly basis (Paragraph 3, Part 5 of Article 151).
Previously, Part 4 of Article 151 prohibited the creation of self-help organisations by life-sentenced persons. Now, this restriction has been lifted.
For life-sentenced persons, the condition for permission to spend an additional amount of money per month equal to twenty percent of the minimum wage has been somewhat softened—this can now be granted after five years of serving the sentence, rather than after ten as was previously the case (Part 6 of Article 151).
Also significant is the change whereby life-sentenced men may be transferred from two-person cells to multi-person cells not after 15 years, but after five years of actual service of the sentence, and they may be permitted to participate in group educational, cultural-mass, and physical-health activities (Paragraph 2, Part 2 of Article 151-1). Admittedly, Part 6 of Article 151 retains the provision that such permission to participate in the specified activities is granted after 15 years of actual service of the sentence. This is a clear legislative oversight.
The conditions for the release of convicts are formulated more strictly (Part 3 of Article 153): a full settlement is mandatory, and the money available in the personal account is either issued (as was the case previously) or transferred to an account specified by the convict or an account opened for this purpose. At the convict’s request, a certificate may be issued instead of a character reference, as was previously the case.
Three ‘dead’ articles have been removed from the Code:
Article 160. Public control over persons conditionally and prematurely released from serving a sentence,
Article 161. Procedure for exercising public control over persons conditionally and prematurely released from serving a sentence, and
Article 162. Measures of public influence on persons conditionally and prematurely released from serving a sentence.
These articles provided for public control over conditionally and prematurely released persons by public organisations possessing relevant powers in their charters, as well as by labour collectives. They were to be involved in such control by supervisory commissions. But the fact is that there are practically no public organisations whose charters would provide for the exercise of such public control. That is, there was effectively no one to entrust it to. Furthermore, labour collectives as subjects of legal relations have long ceased to exist. Additionally, there are no legislatively established mechanisms for influencing conditionally and prematurely released persons by public organisations. There are no lawful procedures for conducting educational work among such persons, let alone monitoring their attitude towards work and studies.
Therefore, only prosecutors ‘suffered’ from the exclusion of these three de facto ‘dead’ articles, as they lost the grounds for issuing formal ‘deficiency’ notices when checking supervisory commissions.

It should be noted that the Criminal-Executive Code of Ukraine in its new wording contains some contradictory provisions, and a number of clauses are not drafted with sufficient clarity; nevertheless, it has become noticeably ‘more humane’. A number of unaddressed proposals also remain, such as, for instance, the right to compensation for loss of ability to work starting from the moment of its occurrence, rather than after release. It would be useful to soften the conditions for the release of life-sentenced prisoners by providing, for example, for conditional and premature release for them as well.
But those are tasks for tomorrow.