Why gravely ill prisoners are not released

Vladimir Bocharov-Huz  writes that Ukraine’s Criminal Code (Article 84 § 2) allows the court to order a prisoner’s early release on the grounds of a serious illness.  The court is supposed to consider the seriousness of the crime; the nature of the illness; the prisoner’s personality and other circumstances.

The list of illnesses which can be grounds for early release (as per an Order from 18.01.2000) includes the most serious forms of tuberculosis; various manifestations of HIV/AIDS.  Special Medical Commissions from State Penitentiary Service hospitals are responsible for identifying such illnesses.

In fact, however, the illness serves as grounds for early release only if its nature, as well as its gravity, prevents serving the sentence, i.e. could do serious damage to his health or kill him.

The application is sent to the court by the head of the penitentiary body or prison, together with the special commission’s assessment and the prisoner’s file, with details about his behaviour while serving his sentence.

That this norm is far from always applied where necessary is acknowledged even by government bodies. Nor have measures adopted in 2012 significantly improved the situation.

The main reasons for prisoners not being released in 2012

-  Examination by the courts takes a long time, with legislation in 2012  not specifying any time frame. The new Criminal Procedure Code specifies a 10-day period for court examination.

-   Low quality of the applications sent to the courts, with required details missing.  The assessments by special commissions were also instrumental

The author cites the example of the Holoprystansky District Court in the Kherson oblast which on 27 July 2012 refused to release a person, stating that the documents had not provided confirmation that a specialist had diagnosed AIDS. In fact the specialization of the members of the commission had simply not been properly deciphered for the court. 

The same court gave an identical reason for its refusal to release a prisoner on 21 September.

-   inefficient diagnosis and identification of illnesses and infection at early stages. Examinations are often carried out at the last stages of an illness and the material reaches the courts when the prisoners are gravely ill.

According to Penitentiary Service information, most gravely ill prisoners died between 3 and 7 days after the applications are passed to the court (130 people).

-   The illness itself is not the dominant factor in early release. This position is seen both with the representatives of the Prosecutor’s Office taking part in court hearings, and with judges.  Analysis of cases showed that both treated the lack of grounds for believing that positive changes in the person had taken place as reason to refuse early release.

In almost all rulings from the Holoprystansky District Court, the Prosecutor was against early release “because the prisoner committed a serious crime and still has a large part of the sentence to serve.”

Another argument used for refusing early release was the “lack of proof that the diagnosed illness precludes serving the sentence imposed by the court”.

Another reason given was that a person had served more than one sentence for serious crimes, and had committed the next soon after being released.

One argument seen was that “the prison contracted the serious illness as the result of self-imposed injuries while serving his sentence”.

A frequent reason given was the lack of any evidence that the prisoner had relatives etc who could and would provide the necessary care  (no relevant statements attached to the application).

The argument quite often appears that the prisoner has not received incentives or responded to efforts to re-educate him, showing lack of desire to reform.

The author notes, however, that there were sometimes quite opposite rulings in similar situations.

Sometimes prisoners were basically hostages to shoddy preparation by lawyers issuing the material.

On 12 December 2012 a prisoner was refused early release by the Sinelnykovsk City-District Court in the Dnipropetrovsk oblast because the lawyer had not submitted the material to a court in the area where the prisoner was serving his sentence.

The Kyiv Court of Appeal turned down an application because the lawyer had not provided all the material required.

The author writes that despite this, there are some grounds for optimism as in 2012 107 more seriously ill prisoners were released than a year earlier (825 against 718 in 2011).

The analysis was carried out as part of an assessment of how the rights of HIV positive prisoners were observed in 2012.