Repealing Article 391 of the Criminal Code of Ukraine – Silence Against Arguments

Repealing Article 391 of the Criminal Code of Ukraine – Silence Against Arguments

Are There Convincing Arguments for Retaining Article 391 in the Criminal Code?

© ‘Donetsk Memorial’

Currently, there is an active discussion regarding amendments to the Criminal Code of Ukraine, which propose to repeal Article 391 of the Criminal Code of Ukraine (hereinafter – Article 391). This article provides for criminal punishment for ‘wilful disobedience to the lawful demands of the administration of a correctional institution or other obstruction of the administration in the lawful exercise of its functions by a person serving a sentence of restriction of liberty or deprivation of liberty’. The law currently provides that if a convicted person, ‘for violating the requirements of the sentence execution regime, was subjected during the year to a disciplinary penalty in the form of transfer to cell-type premises (a solitary cell) or was transferred to a stricter regime of sentence execution’ – this person may be punished by imprisonment for a term of up to three years.
The issue of repealing Article 391 is quite controversial
The events of recent months have shown that debating this issue in person is too difficult and usually unproductive: some assertions are mere slogans lacking any justification, while the discussion of several other arguments is simply bypassed by opponents, making it difficult to extract clear positions from such confusion.
Therefore, we decided to try to collect and present the written arguments of both sides. And it turned out that state structures are virtually unable to provide their own arguments against those of the proponents of repealing the article, responding with... silence.
The main arguments IN FAVOUR of repealing Article 391 are as follows:

* The article provides for a criminal penalty for actions, none of which constitute a criminal offence, but are rather of a disciplinary nature. Apart from Belarus, there are no known countries where a similar punitive practice is applied.

* Even without Article 391, the legislation contains sufficient mechanisms to hold convicts criminally liable if they commit new crimes while serving their sentences.

* The European Committee for the Prevention of Torture has repeatedly recommended that Ukraine repeal Article 391, but these recommendations have still not been implemented.

* This article is highly prone to corruption: prison staff often demand bribes from convicts under the threat of applying Article 391 and ‘tacking on’ an additional sentence.

These arguments are consistently and clearly repeated by the proponents of repealing Article 391. On occasion, they simplify their arguments slightly for greater emotional effect. For example, they claim that almost every one of the 50,000 Ukrainian prisoners could fall victim to the application of the article. Yet there are barely 37,000 convicts in Ukraine in total, and far from everyone – indeed, not even one in three or four – clashes with the administration to such an extent as to face the threat of punishment under Article 391. Or they say that an additional three years in prison can be handed down for refusing to clean a room or for failing to comply with the wake-up command.
This is not entirely correct – or rather, not correct at all – because it is impossible to receive three years' imprisonment solely for refusing to clean a room or for refusing to perform morning exercises. First, the offender must commit something more serious and be subjected to a penalty in the form of transfer to cell-type premises or transfer to a stricter regime of sentence execution; then, they must commit some minor infraction, and only after that can the institution's administration qualify the convict’s actions as ‘wilful disobedience’ and submit materials to court for the application of Article 391. And even then, this is on the condition that the convict managed to commit all these violations within a single year.
In contrast, the proponents of retaining Article 391 in the Code – mostly employees of the penitentiary service and certain law enforcement agencies – insist that this provision is desperately needed to maintain law and order in correctional colonies, and that its repeal would contribute to the destabilisation of law and order in them. They claim that the absence of Article 391 would deprive institutional administrations of a mechanism of influence over wilful offenders of the law, presenting this circumstance as if the legislation contains no other mechanisms of influence on defiant convicts.
However, for a constructive discussion, it is important to clearly understand the opponents' arguments. To this end, back in November 2018, the Human Rights Information Centre and certain journalists sent a series of inquiries to the State Criminal Executive Service of Ukraine (SCES), the Prosecutor General’s Office (PGO), the Security Service of Ukraine (SBU), the Ministry of Internal Affairs (MIA), the Commissioner for Human Rights, and the head of the ‘People’s Front’ parliamentary faction in the Verkhovna Rada of Ukraine, MP M. Burbak.
In their inquiries, the journalists asked several simple but important questions, such as:
Do you consider the repeal of Article 391 of the Criminal Code of Ukraine in its current form to be expedient?
If YES, what is your main argument?
If NO, what is your main argument?
Please specify for which specific criminal actions Article 391 of the Criminal Code of Ukraine exclusively provides liability, such that no such liability is provided for by any other articles of the Criminal Code of Ukraine?
How can the CPT's recommendation to repeal Article 391 be implemented?
The answers to these questions (or the avoidance of them) would have allowed a better view and understanding of the positions of these agencies and an assessment of the seriousness of their arguments. The journalists' expectations were not disappointed.
The reply of the Ministry of Internal Affairs notes the fact that a bill was submitted to remove Article 391, stating that ‘the purpose of the bill is to put an end to the massive abuse of the provisions of Article 391 of the Criminal Code of Ukraine by the administrations of correctional institutions and to the practice of unjustified criminal repression of convicts, bringing the work of the national penitentiary system into line with the standards of the Council of Europe and the requirements of the democratic community.’
The Ministry's position is as follows:
‘resolving the issue of decriminalising Article 391 of the Criminal Code of Ukraine, like any other provision, requires a more detailed study involving specialists from all interested state bodies and representatives of the Supreme Court of Ukraine, regarding the efficiency and validity of its practical application, taking into account the analysis of judicial practice in the consideration of criminal proceedings of the specified category of crimes’.
Notably, the Ministry of Internal Affairs currently has no clear and unambiguous arguments against the repeal of Article 391.
The head of the ‘People’s Front’ parliamentary faction in the Verkhovna Rada of Ukraine, MP M. Burbak, noted that ‘in the event that the corresponding bill is submitted for consideration, the decision on the results of its consideration will be taken at a meeting of the parliamentary faction in accordance with the established procedure’. That is to say, today he and his fellow MPs are neither FOR nor AGAINST; the faction will make its decision only when the time comes.
The SBU replied that ‘the issue raised does not fall within the competence of the Security Service of Ukraine’.
The Commissioner for Human Rights stated that she supported the repeal of Article 391, but cited only the existence of the CPT recommendation as her argument.
The most interesting responses were delivered by two institutions – the PGO and the SCES.
The response of the Prosecutor General’s Office emphasises (a virtually complete quotation, which is important) that ‘the study of the provisions of the bill and its explanatory note showed that the exclusion of Article 391 from the Criminal Code of Ukraine will lead to the complete decriminalisation of actions consisting of wilful disobedience to the demands of the administration of a correctional institution, which will contribute to the destabilisation of law and order in correctional colonies through non-compliance with the conditions of the execution and serving of sentences by convicts’.
If one sets aside logic and common sense, the response seems reasonable enough. Yet the phrasing of this formulation is highly telling, and it is hard to refrain from asking: which legal norms did the specialists who studied the provisions of the bill use? Which international documents were considered in the process? With which experience – domestic or international – was the comparison made? The PGO’s response says absolutely nothing about the professional standard of this ‘study’.
Precisely to understand the agency's arguments, a second inquiry was sent to the PGO, posing the following questions:
Taking into account the assertion regarding the possibility of the ‘complete decriminalisation of actions consisting of wilful disobedience to the demands of the administration of a correctional institution’, please specify for which specific criminal actions Article 391 of the Criminal Code of Ukraine exclusively provides liability, such that no such liability is provided for by any other articles of the Criminal Code of Ukraine?
How should Ukraine respond to the CPT's recommendations to repeal Article 391 of the Criminal Code of Ukraine?
Can you provide examples where, after Article 391 was applied to a convict, law and order in the institution improved? In what way was this expressed?
The PGO’s reply to these additional questions was succinct:
‘We inform you that the provisions of the Basic Law of Ukraine do not authorise prosecution bodies to provide clarifications, prove positions, or convince citizens of them.’
The charm of this response lies in the fact that, if one carefully re-reads the questions in the inquiry, it is obvious that no clarifications were requested. What exactly is there to clarify when the request was to ‘provide examples’ or to ‘inform on how the country should respond’?
It is also unclear why the prosecution is ‘not authorised to convince citizens’. How then should one understand Article 40 of the Basic Law, which proclaims and requires:
‘Everyone has the right to send individual or collective written petitions or to personally appeal to state bodies, local self-government bodies, and officials and officers of these bodies, which are obliged to consider the appeals and provide a reasoned response within the time limit established by law.’
Can the PGO's first response (and indeed the second) be considered ‘reasoned’ within the meaning of Article 40 of the Constitution of Ukraine?
Following these rhetorical questions, it does not seem far-fetched to conclude that the Prosecutor General’s Office has nothing reasonable to say in response to simple clarifying questions, and that simply no one conducted even a slightly attentive and serious ‘study’ of the bill. At least, the PGO provided no evidence to the contrary. Thus, the PGO has no actual arguments for retaining Article 391.
The Prosecutor General’s Office’s confidence that repealing the article ‘will contribute to the destabilisation of law and order in correctional colonies through non-compliance with the conditions of the execution and serving of sentences by convicts’ is nothing more than a verbal construct, unsupported by facts or the practice of institutions. And everyone who repeats this mantra without evidence, including MPs, merely demonstrates that they have no factual proof of the dangers of repealing the article, and that there is no real substance behind their words.
The PGO also avoided answering the question: for which specific criminal actions does Article 391 of the Criminal Code of Ukraine exclusively establish liability, such that no such liability is provided for by any other articles of the Criminal Code of Ukraine?
It is obvious that if there had been a substantive answer to this question, the PGO specialists would have certainly provided it. If, however, these specialists did not seize the opportunity to present arguments in defence of Article 391 on this matter, then in fact these arguments do not exist.
The responses from the leadership of the State Criminal Executive Service are no less interesting and telling. There are also two of them. In the first, the head of the service presents two mutually exclusive theses. On the one hand, he states that ‘the formulation of state policy in the area of the execution of criminal sentences does not fall within the competence of the SCES Administration’.
This is despite the fact that no one asked the SCES Administration to ‘formulate policy’; there was merely a request to communicate the service's position regarding certain statements in the context of discussing the idea of repealing Article 391. In other words, the service's response is about something completely different from what was requested, which may indicate that the service simply has no clear position that can be made public.
Although immediately, in contradiction to the previous thesis, the SCES Administration claims to have submitted to the Ministry of Justice proposals and comments on the draft Law of Ukraine on the repeal of Article 391, thereby effectively contributing to the ‘formulation of policy’. The substance of these proposals and comments was not disclosed, although this was precisely what the inquiry requested.
In his second response, the head of the SCES recites at great length the provisions of laws and resolutions of the Cabinet of Ministers, but ultimately states: ‘in accordance with the provisions of the Order of the SCES Administration of Ukraine No. 261/OD-18 dated 6 September 2018, the requested information in the request for public information is not covered by the List of Public Information held by the SCES Administration of Ukraine’.
Because of this, he referred a copy of the inquiry to the Ministry of Justice for consideration. Thus, the SCES Administration avoided expressing its position regarding the repeal of Article 391, which is what it had been asked to do.
Another important conclusion suggests itself: the SCES Administration has nothing to say in defence of retaining Article 391.
It is quite important to note that both the PGO and the SCES Administration ignored the very important issue of Ukraine's implementation of the CPT's recommendations to repeal Article 391. The Ukrainian authorities have provided no evidence of insurmountable circumstances that prevent them from implementing the CPT's recommendation. The only obstacle to implementing the recommendations is a lack of political will, even though assurances of moving ‘towards Europe’ are constantly voiced from high platforms. A rather strange trajectory of this movement emerges in the case of Article 391.
Based on the clarification of the positions of various agencies regarding the repeal of Article 391, it can be stated: none of the government structures has reasoned arguments in favour of retaining Article 391.
If one imagines the arguments of both sides placed on the scales, on one side – in favour of retaining Article 391 – there will be:
- Maintaining order and discipline in correctional institutions (although this can be fully ensured by other means, without involving Article 391);
- Applying criminal liability for disciplinary offences;
- Bribery and arbitrariness of the administration in applying Article 391;
- Lack of clear terminology (such as ‘wilful disobedience to the lawful demands of the administration’) and limits on the application of Article 391.
On the other side – in favour of repealing Article 391 –
- The need to improve legislation in accordance with European standards;
- Repealing criminal punishment for disciplinary offences;
- Recommendations of the European Committee for the Prevention of Torture to repeal Article 391;
- An effort to improve the country's image;
- Depriving institutional administrations of a mechanism for demanding bribes.
In conclusion, the actual position of the proponents of retaining Article 391 in the Criminal Code is characterised by the following features:
- Readiness to apply criminal punishment for disciplinary violations;
- Complete indifference to potential corruption risks associated with the application of Article 391;
- Absolute indifference to the CPT's position and its recommendations;
- Absence of concrete facts regarding the effectiveness of applying Article 391;
- Complete indifference to the potential damage to the country's image;
- Lack of substantive answers to specific questions posed by the proponents of repealing Article 391.
The situation that has developed is complex; the longer it remains unresolved, the more losses the country may sustain. The paths for resolving it, for example, through the adoption of a law repealing the provision, are still poorly visible. A compromise solution could be the application of the following algorithm of actions (subject to the goodwill of the authorities).
There is a tried-and-tested, civilised procedure of action in the case of contentious issues regarding certain legislative provisions: during the discussion of options for solving the problem, the application of the controversial provision is suspended – in other words, a moratorium on the application of the provision is effectively introduced. This has often been done by some countries, for example, during discussions on the potential abolition of the death penalty: despite the presence of the provision in the legislation, it was not applied for a certain period. And although formally the legislation permitted the application of the punishment, the authorities demonstrated goodwill and a desire to reach an understanding and acted honourably: they did not apply a de facto active but controversial legislative provision.
Today, the authorities – first and foremost, the SCES staff – can introduce (de facto, not by a decision of some body, but simply without adopting any formal decisions) a moratorium on the application of Article 391. Say, for a year. During this year, judges can also refrain from handing down sentences under Article 391.
Meanwhile, the various aspects of the expediency of applying Article 391 can be discussed more professionally and thoroughly. Such a sequence would actually correspond to the position of the Ministry of Internal Affairs:
‘resolving the issue of decriminalising Article 391 of the Criminal Code of Ukraine... requires a more detailed study involving specialists from all interested state bodies and representatives of the Supreme Court of Ukraine’.
Such actions by the authorities could demonstrate their responsible attitude towards the public's proposals and readiness to implement European standards for resolving complex issues, especially those of significant social importance.
It is sad to pursue the logic of this proposal, but it is logical to argue: a refusal by the authorities of the proposed algorithm (a moratorium) on the application of Article 391 will demonstrate that commitment to European standards for resolving socially significant problems still remains exclusively in the words of those in high offices. Our authorities have neither the political will, nor the responsibility, nor even the capacity to apply such standards in practice.