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13.06.2020 | Kharkiv Human Rights Protection Group
Penal institutions

Criticism of the Amnesty Bill No. 3397 is Unjust!

Photo: European Prison Litigation Network
   

Annotation. Regarding the conclusion of the main scientific-analytical department of the Ukrainian Verkhovna Rada (Ukrainian parliament) on the Ukrainian draft law “on the amnesty of convicts (to prevent the spread of the acute respiratory infectious disease COVID-19, caused by coronavirus SARS-CoV-2)”.


The conclusion of the main scientific-analytical department of the Ukrainian Verkhovna Rada (later referred to as the Main department or Department) on the said Ukrainian draft law indicates that experts approached the draft formally and from a positivist position. During analysis of the draft, experts of the Main department overlooked the main function and purpose of instituting the amnesty. Amnesties have always been and will remain acts of forgiveness, shows of humanism and are oriented towards the primary purpose of the state – people. People are considered the highest social value in Ukraine in accordance with article 3 of the Ukrainian constitution. The statement of the question “why should the amnesty grant those who have been sentenced to prison a non-custodial sentence”, demonstrates the disregard of the Ukrainian experts towards the functions and purpose of the amnesty and incomprehension of its primary content.

In addition to this, the purpose of adopting the bill, as indicated by the explanatory memorandum of the draft, is the prevention of the occurrence and spread of the acute respiratory infection COVID-19, caused by coronavirus SARS-CoV-2 in penitentiary institutions, reducing the number of people serving their sentence in prison, saving budget funds spent on the maintenance of convicts, and safely creating suitable conditions for institutions. It is for this purpose that the draft is aimed towards releasing the maximum possible number of people from penal institutions. This is a normal practise that is understood, recognised, and present around the world during the pandemic.

It is a universally recognised fact that the mentioned infection poses a high-level threat to life. With the aim of protecting against COVID-19, a significant number of states resorted to unprecedented security measures. And only the experts of the Main department don’t understand: what are all these measures for? Why should no less dangerous and no more vulnerable convicts be released? The main argument is an indirect indication that releasing prisoners could result in them committing another crime. But is the real threat of infection in penal institutions, where the government is unable to provide normal conditions of detention, really not more important than an illusory possibility, the assumption that released convicts could commit another crime? It seems that misunderstanding and a lack of consideration of the general trends of the ‘effectiveness’ of criminal penalties doesn’t give the authors of the comments the chance to recall their humanity and comprehensively approach the analysis of the bill.

Consider the comments of the General Directorate on the following points:

  1. In relation to the first comment, the Department specialists note that the approach to the legislative initiative appears to be rather illogical, since, on one hand, the purpose of the bill is defined as the prevention of the spread of the infectious disease COVID-19 amongst inmates serving sentences in penal institutions, yet on the other hand – it proposes granting amnesty to those persons whose punishment is in no way connected to their stay in these institutions. At the same time, the question remains, how would exemption from serving a sentence, for example, in the form of community or correctional labour, fines, service restrictions for military personnel, prevent the spread of COVID-19 in Ukraine.

In connection to this note I wanted to bring attention to the authors’ conclusion and recall that the amnesty is first and foremost an act of forgiveness and humanity. In addition to this, it is a concrete instrument of safety in the pandemic situation, the amnesty is a manifestation of trust in those convicted by the state and provides them with the opportunity to right their wrongs. At this point, the authors of the conclusion must refer to penal legislation, and recall that its purpose is the execution of sentences. It must be understood that laws are passed for a reason. They are passed in human society for the sake of people. Understanding the complexities of law making and its moral and ethical constitution is no less important than the skilful manipulation of the rule of law. An additional argument can also be the fact that an amnesty hasn’t been announced in the past 4 years. This is also a sign of the inhuman character of government politics, contrary to the standing of the Ukrainian constitution. Therefore, exempting non-custodial convicts from their sentences must not be considered a ‘limitation’ of the draft.

  1. In relation to the second point, the comments must be noted, that specialists of the Main department did not take into consideration article 9 of the draft No. 3397, in which a long list is given of those who are not subject to release under this law. In accordance with article 9, people convicted for corruption offenses will not be subject to release.

In addition to this, if the draft No. 3397 were to become a law, it would not cancel or suspend the action of article 86 of the Criminal Code, as a result no conflicts will arise. These laws do not contradict each other. Article 86 of the Criminal Code establishes a general rule that is neither cancelled no altered by the draft No. 3397. The law “on amnesty 2020” does not regulate the general provisions for implementation of the amnesty. It is an act of concrete and restricted activity. In legal sciences, a conflict of laws is commonly understood as a discrepancy or contradiction between regulatory legal acts that regulate the same or related legal relations. General application of an amnesty and the concrete laws on the amnesty cannot conflict with established laws, since they regulate varying legal relations. The laws of the Criminal Code and Ukrainian Law “on the application of amnesty in Ukraine” regulate general questions on the application of the amnesty and its application procedure, while the separate law on amnesty relates to the specific court which must consider the possibility of applying the amnesty. So during the judicial review of individual proceedings on the possibility of release, the court will make use of both general laws on amnesty application as well as specific laws.

  1. The third comment made by the Department again demonstrates the selective and unsystematic approach towards presenting objections. By introducing the amnesty (which, we recall, is an act of humanism and directed towards reducing the risk of the spread of a dangerous infectious disease), the subject of the legislative initiative tries to achieve the specific formulated goal. And in this sense, the principled approach of the experts to the issue of what the crimes were related to is unclear: are they concerned with the protection of the state or the general social neglect of people? If it is protection of the state, then the amnesty can go ahead, if it is a wrongful act, committed by a person under different circumstances, then is this person already undeserving of forgiveness? This is a very strange position and understanding of humanism. It seems that experts of the Department understand humanism as if it were a kind of currency, where a background of committing a criminal offense can be exchanged for a ‘civil’ background.

ATO (Anti-Terrorist Operation) participants take a relatively traditional approach to the release. Firstly, the amnesty is not traditional, due to the fact that since the beginning of ATO only two amnesties have been passed, and secondly, these people (combatants) underwent a very severe psychological experience and some of them found themselves in very difficult living conditions with the ‘habit’ of taking a violent path towards solving the problems in their lives. In many ways the state was unable to support these people, and, it is possible that the amnesty is one way of providing them with a second chance.

  1. The fourth comment is based on the unprofessional misunderstanding of the meaning of ‘dangerous criminals’. Experts, that are providing legislative conclusions, must proceed from a high level of legal awareness and understand the purpose of punishment, the process of release by the amnesty, and the consequences of these releases, they must understand that in the pandemic situation, humanism must be considered above all else. The feedback provided by the authors attests to the fact that the authors based their argument on the statement: “what is something bad were to happen”. This approach cannot be accepted as a professional and capable means of determining and influencing the limitations of the draft.
  2. Concerning the fifth comment, the experts point out the use the terms ‘maybe’ or ‘can be misunderstood’. But, firstly, these assumptions are not based on anything, since the experts themselves correctly interpret the rules when providing commentary, and secondly, the presence of certain technical limitations of the draft cannot point to its general inadmissibility.
  3. Concerning the sixth comment, we consider it necessary to turn the attention of the authors to the existence of probationary institutions and the social adaptation of released convicts, which must work without additional reference to the laws of the amnesty. And means that on the basis of this, the draft cannot be considered inadmissible. However, as an additional rule it can really be useful as another reminder that authorised probationary bodies and subjects of social patronage must properly carry out their functions.

To summarise, I wanted to express great surprise and concern over the conclusion, in which an extremely formal and discreet approach to the issue of granting amnesty to convicts, misunderstanding of the essence of amnesty, unwillingness to constructively review draft No. 3397, anti-humanist and rather cruel politics in relation to the draft and convicts who could, if accepted, escape a threat to health (and essentially, life), is seen. We believe that the conclusion is in need of a critical rethinking, and should not serve as a basis for deviating from the draft and delaying its adoption.


This publication was prepared with the support of the International Renaissance Foundation. The views, expressed in this publication, are those of the authors and may not coincide with the official position of the International Renaissance Foundation


EC Project “Making Ukraine resistant to torture, ill-treatment and impunity”


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