26.02.2011 | Andriy Didenko

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Andriy Didenko begins an article for Dzerkalo Tyznya by reminding the reader of some of the expressions used to refer to the Gulag and Stalin’s repression.  Among these is the one loosely translated in the title, referring to the practice of extending a person’s term of imprisonment when this was supposed to be coming to an end. 

There are, he says, by no means only isolated cases of this happening in today’s Ukraine.  The practice is fairly widely used in the so-called struggle by penal administrations with those who, in the administrations’ view, persistently infringe the rules. That is, any person whom the administration sees as a persistent rule-breaker can end up facing a new criminal prosecution absolutely lawfully. This makes it possible to add a new sentence to that which a prisoner has already served.

In Stalin’s times, the author says, such additional sentences could be for 10 years. Or, for those political prisoners sentenced for the uprisings in 1953-1954, a person who had been sentenced to 25 years got an additional 25.

At the beginning of the 1980s under Andropov, various amendments were made to the Criminal Code.  Under the pretext of fighting crime and corruption, for example, in accordance with Article 183-3, they could come into a cinema, turn on the lights and check everybody’s documents to see whether those present were not skiving off from work or studies.

It was on 23 September 1983 that Decree No. 5855 of the Presidium of the Supreme Soviet brought in an amendment to the 1960 Criminal Code relating to people serving sentences.  This stated that persistent disobedience with regard to the demands of the administration of a penal institution or other behaviour obstructing the administration from carrying out its functions by a prisoner who has during the year been punished by being transferred to cell-like quarters (solitary confinement) or been transferred to a prison shall be punishable by a term of imprisonment of up to three years. There was a second paragraph which envisaged that a court could, where this was sought by the administration, impose a sentence for administrative offences of between three and five years.

In 2001 independent Ukraine passed a new, and it was claimed, democratic Criminal Code according to which administrative offences could not be applied as a condition of criminal liability. Article 2 § 1 states that “the grounds for criminal liability are the carrying out of publicly dangerous actions which contain the elements of a crime set out in this Code”

Unfortunately, although the second paragraph of the article about extending prisoners’ sentences was dropped, the first remained in the 2001 Criminal Code, just under a different number (now 391). This now referred to persistent disobedience with regard to the demands of the administration of a penal institution or other behaviour obstructing the administration from carrying out its functions by a person serving a term of restriction of liberty or deprivation of liberty if that person has during the year been punished by being transferred to cell-like quarters (solitary confinement) or been transferred to a stricter regime.  The grounds for charging somebody under Article 391 of the Criminal Code were the application against them of an administrative penalty (being transferred to a solitary cell) for actions aimed at avoiding further serving of the sentence.

Yet, the author states, this formulation directly contradicts the publicly declared principles of the 2001 Criminal Code since it entails criminal prosecution for an administrative offence.

What is more, he writes, the norm is not only applied in cases where the prisoner is trying to avoid serving his sentence. These are mainly cases where people have been placed in solitary confinement for other reasons. This can be for refusing to do extra clearing of the premises; for not making their bed well enough; for improper behaviour to a member of staff; refusing to carry out an instruction from the staff.

The pre-trial investigation into such cases quite often takes place in the penal colony itself, with the diznavach [the person who carries out detective inquiry work to decide whether the case should be passed to the criminal investigator) being the Head of the Administration. The courts normally regard the mere fact of solitary confinement as grounds for applying Article 391.

On 21 January 2010 the Verkhovna Rada passed amendments to the Criminal and Criminal Procedure Codes (on ensuring protection of the rights of prisoners in penal institutions). One amendment removed paragraph 5 of part 1 of Article 132 which allowed for extra cleaning duties as a form of punishment. This was often used by the staff to create a pretext for charging a person with the crime envisaged by Article 391 of the Criminal Code.

Parliament thus only managed to remove one of the forms of administrative punishment used for criminal prosecution of prisoners while leaving the shameful and repressive norm of Article 391 intact.

The courts did not re-examine the material and therefore did not cancel sentences involving Article 391 applied due to refusal to do extra cleaning. Such prisoners are still serving the extra sentences. This has left to systematic infringements of Article 5 of the Criminal Code stating that “a law on criminal liability which cancels the criminality of an action, makes criminal liability less severe or in any other way improves a person’s position, has retrospective force in time and thus applies to a person who carried out the relevant actions before the law came into force, including people who are serving or have served a sentence but have a criminal record”.

What is more, penal administrations continue to apply administrative punishment (refusal to do extra cleaning of premises) to exert pressure on prisoners and even resort to criminal prosecution using Article 391.  As the substance of the crime under this Article repeated refusals by the prisoner to be on duty with them then being punished with solitary confinement and charged under Article 391.

The author cites a prisoner born in 1975 whom he calls Kozmuk, not his real name so as not to get the person into trouble. Kozmuk has already been charged four times under Article 391.  His original sentence was for 6 years. He was sent to the Izyaslav Colony where he was charged under Article 391 resulting in his overall sentence turning into eight years and two months. . He was transferred to the Berdychiv Penal Colony where he was again charged under Article 391. This was although almost all the administrative offences (and there are over 20) which were the grounds for Kozmuk initially being placed in solitary confinement and then charged under Article 391 consisted precisely of refusing to do extra cleaning. Proof that the prisoner is specifically refusing to clean up in the barracks where over 40 prisoners live is provided by a video recording made by the penal administration where he explains his refusal as because such a punishment is degrading.

There can be no hope of progressive changes and implementation of the country’s obligations to democratize the penal system, the author says, while the State philosopher behind the system remains the same, repressive where punitive legislative rhetoric is actively applied making it possible to use criminal prosecution for administrative offences and creating the conditions for abuse of power where people are punished or not at the staff’s discretion.

An abridged version of the original (with detail not immediately pertaining to the issue of added terms of imprisonment omitted)

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