Release of Seriously Ill Prisoners: Ukrainian Courts Apply Soviet Legislation Rather than ECtHR Case Law
Statistics
KHPG lawyers have investigated the release of convicted individuals from serving sentences due to severe illness under Article 84 of the Criminal Code. This study covered 1,471 judicial decisions delivered by first-instance courts between 1 January 2017 and 30 June 2022.
According to the study’s findings, in 51.4% of cases the prisoners were released; 75% of submissions by the penitentiary administration were granted, and only about 20% were rejected. At the same time, petitions filed by the prisoner (or his/her lawyer) were successful in 20% of cases. The position of prosecutors expressed during hearings had an even greater impact on the outcome of such petitions: in 83.5% of cases where the prosecutor supported the petition, the judge granted it, and in 88.6% of cases where the prosecutor opposed the petition, the court rejected it. In only 5% of cases did the courts deliver a decision contrary to the prosecutor’s position.
In decisions of this kind, Ukrainian courts virtually never apply ECtHR case law, referencing it in only 5.5% of judgments. Moreover, even in these instances, they do not cite specific ECtHR rulings in this category of cases, but merely mention the Convention in general and the need to take ECtHR decisions into account.
The case of Yermolenko v. Ukraine, No. 49218/10, 15 November 2012: ‘Under such circumstances, the Court considers that, having regard to the absolute prohibition of torture and of inhuman or degrading treatment, the compatibility of the applicant’s state of health with his detention cannot be assessed on the basis of an exhaustive list of illnesses alone, without any consideration by the domestic judicial authorities.’
The Modern Case Law of the ECtHR – Three Components:
To determine whether the detention of an ill person is compatible with Article 3 of the Convention, the ECtHR considers three factors:
- the applicant’s state of health and the impact of the manner of their detention upon it;
- the adequacy or inadequacy of the medical assistance and treatment provided in detention;
- whether the person’s detention should be maintained in light of their state of health.
(see, for example, Dorneanu v. Romania, 55089/13, §§ 77–80, 28/11/2017; Cosovan v. the Republic of Moldova, No. 13472/18, §§ 75–78).
Approaches of Domestic Courts
Courts rely on an exhaustive List of Illnesses that serve as grounds for submitting materials to court regarding the release of convicted persons from serving their sentences (Appendix 13 to the Procedure for Organising Medical Assistance to Convicted Persons, approved by Joint Order of the Ministry of Health and the Ministry of Justice No. 1348/5/572), although neither Article 84 of the Criminal Code of Ukraine nor Article 154 of the Criminal Executive Code of Ukraine contains such a requirement. As its name suggests, this List itself is merely an annex to a secondary legislative act.
Ukrainian courts also refer to Resolution of the Plenary Supreme Court of Ukraine No. 8 of 28 September 1973 (as amended in 1993) ‘On the Court Practice of Applying Legislation on the Release of Seriously Ill Convicts from Serving Sentences’.
‘...In deciding on the release from further serving of sentences of individuals who have contracted a serious illness, other than individuals suffering from a chronic mental illness, the court must proceed not only from the conclusion of the medical commission, but also take into account the gravity of the crime committed, the behaviour of the convict during sentence execution, their attitude towards labour, their degree of rehabilitation, whether they have avoided prescribed treatment, and other circumstances.’
According to the study I mentioned, domestic courts referred to the Plenary Resolution in 30% of decisions. Moreover, they cited it in nearly half of the cases where the release of a prisoner was denied.
Courts prioritise circumstances unrelated to the diagnosis, the patient’s state of health, or the effectiveness of their treatment. In particular, they focus on the gravity of the crime, from which they infer the patient’s danger to society. This is particularly pronounced in cases involving individuals sentenced to life imprisonment.
Some judicial decisions do not even specify the exact illness from which the person suffers, merely stating whether the illness is on or off the list.
Conclusion: in effect, the courts examine the very same circumstances considered for parole, alongside the presence of an illness on the List.
The Case of Panasenko v. Ukraine
In the case of Panasenko v. Ukraine (and two other cases), at the communication stage with the Government, the ECtHR asked the parties the following questions:
1. Having regard to the applicants’ state of health, was their continued detention compatible with the requirements of Article 3 of the Convention?
2. Did the state conduct an adequate and timely assessment of the compatibility of the applicants’ state of health with their detention? Here, I would note that the ECtHR did not ask questions regarding other circumstances – the gravity of the crime, the degree of rehabilitation, attitude to labour, etc. – only about factors relating to health.
In particular, did the statutory procedure for releasing convicted persons from serving their sentences on the grounds of incompatibility of their state of health with detention satisfy the requirements of the quality of law? Was this procedure sufficiently clear to provide a practical possibility of release for such persons? Was the way in which domestic courts interpreted this procedure foreseeable?
As far as adequacy is concerned, it can at any rate be argued that ECtHR case law is ignored in virtually every case, despite the fact that ECtHR judgments are a source of law, and its jurisprudence must be taken into account by courts in resolving cases (Article 9 § 5 of the Criminal Procedure Code). Instead, courts rely on the recommendations (which are not rules of law) of the Plenary Session of a now-defunct court, which refer to provisions of codes adopted during the Soviet era that have long lost their force.
The problem is that there is no established case law at the national level, as decisions in this category of cases cannot be appealed on points of law (cassation). Consequently, there are no legal findings of the Supreme Court in such cases, which results in an unrestrictedly broad interpretation of the provisions of Article 84 of the Criminal Code of Ukraine, both regarding ‘other circumstances of the case’ to be considered when deciding cases of this category, and the concept of an ‘illness that prevents the serving of a sentence’.
Timeframe for Case Consideration
Another issue is directly linked to the judicial proceedings: namely, the failure to respect the time limits for considering such cases. Such a petition (submission) must be decided within 10 days of its receipt by the court, but courts often fail to comply; in some cases, judges go on leave and hear the case only after returning to work.
During the study, we also analysed the duration of judicial proceedings in such cases: in some instances, it reached a year or more. As a result of delays in judicial consideration, in 65 cases prisoners died before their petition for release was heard by a first-instance judge. Even more sick prisoners die waiting for the completion of appeal proceedings, which take longer than proceedings in local courts.
In the case of Sleptsov v. Ukraine, the ECtHR applied an interim measure under Rule 39 of its Rules of Court and, inter alia, indicated to the Government of Ukraine the need to take steps to examine the sick person’s petition for release from further serving of his sentence without delay.
I would point out that in the case of Ostapenko v. Ukraine, the ECtHR raised questions about both the adequacy of the assessment of the compatibility of the person’s detention with their state of health and the timeliness of resolving the issue of medical release.
It would be desirable if the representative body (the Government of Ukraine in ECtHR cases), at least once the ECtHR delivers its judgment in the case of Ostapenko v. Ukraine, took the actions provided for by Article 14 of the Law of Ukraine ‘On the Execution of Decisions and Application of the Case Law of the ECtHR’ concerning general measures.
Furthermore, it is highly desirable that the Supreme Court conduct a review of judicial practice in this category of cases, as provided for in Article 36 § 2 (2) of the Law of Ukraine ‘On the Judiciary and the Status of Judges’.
Perhaps introducing some clarity to Article 84 of the Criminal Code of Ukraine could change the courts’ approach to resolving the issue of medical release or, in the ECtHR’s terminology, allow for ‘an adequate assessment of the compatibility of the state of health of such prisoners with their detention’.
Examples of Judicial Decisions
26.09.2023 Zhovtnevyi District Court of Kharkiv: ‘In his relations with representatives of the institution’s administration, he is polite, but with the aim of obtaining lenient treatment. He tries to keep his bed and bedside table clean and tidy, but does not always have a neat appearance. He tries to handle the property of the institution and the items he uses when performing assigned work with care, to look after them properly, to use them as intended, and to comply with fire safety and occupational safety requirements, although the court established that the convict is not employed due to his inability to perform physical work as a result of illness.’
12.06.2024 Kharkiv District Court of Kharkiv Region noted: ‘According to the well-established case law of the European Court of Human Rights, the human right to liberty is fundamental but not absolute, and may be restricted in the public interest, and a judicial decision must ensure not only the rights of the convict but also high standards of protecting the rights and interests of both society and the victims.’
20.07.2024 Kharkiv District Court of Kharkiv Region refused to release a woman sentenced to life imprisonment who, at the time of the review of the submission, was already of retirement age, had served 27 years in prison, and suffered from a number of chronic diseases, including Stage IV cervical cancer, which is on the List. For the past two years, the convict spent most of her time undergoing inpatient treatment at a prison hospital in Lviv. Given the gravity of the crime (intentional homicide), the court expressed the opinion that ‘the nature of the crime committed indicates an absolute necessity to isolate the convict from society’. The court also took into account her ‘average’ character reference and behaviour, and even her attitude to labour, although the woman was unable to perform any work. On 12 August 2024, the same court, in case No. 635/8124/24, repeatedly rejected the submission of the correctional facility administration to release the convict on the same grounds. Two months later, the colony administration filed a new petition for the release of the sick convict, but she did not survive to see the issue considered.
02.07.2024 Kharkiv District Court of Kharkiv Region considered the case of a convict suffering from Stage IV-B cancer, which is on the List, as well as a number of cardiovascular diseases. Citing the Plenary Supreme Court (1973), the court noted that when deciding the issue of release, it is necessary to take into account, in particular, the gravity of the crime, the prisoner’s behaviour, their degree of rehabilitation, and their attitude to labour. Having considered, among other things, the individual’s refusal to admit guilt in committing the crime, the court expressed the view that there was a medium risk of reoffending and a potential danger to society: ‘the nature of the crime committed indicates an absolute necessity to isolate the convict from society’, and refused to release the convict.
06.09.2024 Halytskyi District Court of Lviv considered the case of a convict suffering from Stage IV cancer, which is on the List. The court reasoned that the convict was serving an 8-year sentence of imprisonment for committing a crime from an exhaustive list of especially grave crimes that are most dangerous to society and the state. Taking into account the balance of interests and the purpose of this type of punishment, which consists in protecting society and preventing the commission of violent crimes in the future, the court concluded that releasing the convict from actually serving the sentence would fail to achieve the goals of punishment regarding the safety of society, and therefore the application must be rejected.