By the Decision of the Constitutional Court of Ukraine as of 29.12.1999 the “death penalty” was deemed unconstitutional. With a delay of four years Ukraine has fulfilled its obligations before the Council of Europe. However for the period from the date of accession to the Council of Europe in November 1995 until March 17, 1997 when the President just stopped to give his consent to the execution 217 people sentenced to death were executed, although they had to stay alive.
In this case, no moratorium was introduced, the death penalties just stopped under the threat of exclusion of Ukraine from the Council of Europe for non-compliance with its obligations. As of the end of 1999 the sentence for more than 450 people on death row was changed into life imprisonment. Ardent supporters of the death penalty threatened that surge in killings would happen with its abolition. However, an annual number of homicides has decreased from 4,500-4,700 in 1999-2001 to 2,300-2,500 in 2011-2012.
The conditions of life-term prisoners’ confinement for the last 15 years became a bit better, but still continue to remain extremely rigid, and often unnecessarily harsh. Only in 2014 they were allowed long-term visits, but they cannot count on parole, almost all of them are unemployed. This is the context of their existence, in which the state expects them to “correct themselves”.
And although for fifteen years in Ukraine there is no such a criminal punishment as the “death penalty”, but still some of the nuances of its replacement with life-term imprisonment did not find a solid legal basis. To a large extent doubts are generated by the procedure of a new punishment introduction, which is far from perfect, - “life-term deprivation of liberty”, which was introduced on 03.04.2000 after more than three months from the decision of the Constitutional Court of Ukraine as of 29.12.1999. There are especially serious complaints about the Decision of the Constitutional Court of Ukraine (hereinafter – the CCU) as of 26.01.2011 “The Case on the substitution of a life-term deprivation of liberty for a death penalty”, which as if justifies the legality of sentencing to the life-term deprivation of liberty for all persons who have committed their crimes before 03.04.2000. The Constitutional Court considers all of them as an undivided solid category, which either had been already sentenced to death and the sentence did not have time to be enforced, or could have been sentenced to death, but later they were sentenced to the life-term deprivation of liberty for a death penalty - a more lenient sentence.
However, the judges of the Constitutional Court, possibly as a result of their lack of skills, lack of professional training or excessive political bias have made a gross mistake: they combined the two categories of persons who have committed crimes before the introduction of “the life-term deprivation of liberty”, i.e. before 03.04.2000, - on the one hand, those who have committed crimes before 29.12.1999, i.e. at a time when the most severe punishment was the death penalty and, on the other hand, those who committed crimes during the period from 29.12.1999 till 03.04.2000, when the most severe punishment in the Criminal Code was imprisonment for 15 years. This is the category of persons that could not be threatened by the "death penalty", because it could not be realized. And that's why it was not only pointless but also legally illiterate to talk about the substitution of the death penalty for them. After all, Part 2 of Article 4 of the Criminal Code expressly provides as follows: “A crime and punishment for it, as well as other legal consequences of the illegal act are defined by the criminal liability law in force at the time of commitment of such an act”.
Why then the Constitutional Court of Ukraine extends the procedure of substitution of the life-term deprivation of liberty for the death penalty to include not only those who committed the crimes before 29.12.1999, when the sentence “death penalty” existed in the law, but also to the persons who have committed crimes in the period from 29.12.1999 to 03.04.2000, when it was no longer there?
One can be amazed, but the Constitutional Court of Ukraine in its Decision as of 26.01.2011declares a position that the criminal law can only be substituted with another law, and not the decision of the Constitutional Court who has abolished the death penalty. By the logic of the judges the sentence "death penalty" also remained legal following the Decision of the CCU as of 29.12.1999. In other words, the law on the application of the death penalty after the Decision of the CCU as of 29.12.1999, continued to exist and was substituted only with Law No. 1483, which provides for "the life-term deprivation of liberty" and entered into force on 03.04.2000.
However, this Decision of the Court is contrary to Part 2, Article 152 of the Constitution of Ukraine, according to which “the laws and other legal acts or their separate provisions lose effect from the date of adoption by the CCU of a decision on their unconstitutionality”. Thus, the law on the death penalty application has not acted since 29.12.1999. In fact the absence of law or its termination leads to the same consequences – to the impossibility of its application.
In the period from 29.12.1999 till 03.04.2000 when the law providing for life imprisonment entered into legal force, the maximum measure of punishment for especially grave crimes was 15 years in prison as the death penalty ceased to have legal effect. An appropriate opinion is contained in the conclusions that have been made by:
- M.I. Siryi, a senior researcher of V. M. Koretsky Institute of State and Law of the NAS of Ukraine, the candidate of legal science;
- S.V. Kivalov, the Chairman of the Verkhovna Rada Committee on Judicial Policy;
- V.I. Tiutuihin, the Professor of the Yaroslav the Wise National Law Academy of Ukraine.
The validity of these arguments about the inapplicability of the procedures for substitution of the life imprisonment for the death penalty for offenders who committed crimes in the period from 29.12.1999 till 03.04.2000 is confirmed by a number of court decisions made in 2009-2010 (before the Decision of the Constitutional Court as of 26.01.2011). Then the courts reasonably substituted a penalty for the perpetrators committing the crimes in this period, but wrongly sentenced to life imprisonment, with imprisonment for 15 years. Thus, judicial errors were corrected although not immediately.
This error correction practice stopped after the Decision of the Constitutional Court as of 26.01.2011. As a result in Ukraine two completely different judicial approaches may be applied to the persons who are in exactly the same legal situation: for one of them mistakenly made Decisions about “life imprisonment” are replaced by 15 years imprisonment, to the others such a substitution was denied.
The Decision of the CCU as of January 29, 2011 is contrary to the International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16.12.1966, which was ratified by Ukraine on 10.19.1973. Article 15 of this international document reads as follows: “there cannot be assigned a heavier penalty than the one that was applicable at the time of a criminal offense commission”. This is also referred to Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Constitutional Court, giving an interpretation in terms of the use of life imprisonment in respect of the persons who have committed crimes in the period from December 29, 1999 until entry into force of the Law No. 1483 as of 03.04.2000, has stated in Paragraph 4 thereof: “... the alternative nature of the sanctions set by the articles of the Code of 1960, which provided for punishment for extremely serious crimes, did not give reasons for the appointment by the court of another sentence instead of the death penalty before its substitution by the Verkhovna Rada of Ukraine with the life imprisonment”. It is unclear what law did the Court was guided by when making such a conclusion. This conclusion of the Court is far-fetched, and illegal.
In addition, in its judgment as of 26.01.2011 the Constitutional Court refers to the practice of the European Court of Human Rights, in particular, on the judgment in the case “Skoppola vs. Italy” as of September 17, 2009, a claim No. 10249/03 /. But here the Constitutional Court also acts, to put it mildly, in not correct way: referring to this judgment, the Court makes reference, but cites just a part of the sentence and does not indicate that the European Court of Human Rights concluded that in relation to Skoppola occurred violation of Part 1, Article 7 of the Convention.
It should be recognized the sooner the better that the application of life imprisonment to the persons who committed crimes in the period from 29.12.1999 till 03.04.2000 is a violation of Part 1, Article 7 of the European Convention on Human Rights and Part 2, Article 4 of the Criminal Code of Ukraine.
It is very regrettable that no one institution in the state - neither the Verkhovna Rada, nor the General Prosecutor's Office, the Supreme Court or the Constitutional Court, nor even the Commissioner for Human Rights - is not willing to take on the correction of errors made by the Constitutional Court in 2011, and courts of Ukraine in 2000-2003.
However, since 29.12.2014 there comes a time when those who committed crimes during the period from 29.12.1999 till 03.04.2000, and who could be punished by a maximum penalty of 15 years in prison, will be detained for more than 15 years. This means that when the error of the Constitutional Court will be corrected, they will have a legal basis to file the claims in court on illegal fact of their detention after termination of 15-years period.
The following option also cannot be excluded in future: in the case of lawsuits won and material compensations for moral damage adjudged the state can try to recover the costs for these compensations from the judges of the Constitutional Court who took illegal decision in 2011, and such a prospect from day to day becomes more and more real.
There is another way for the government to get out of the situation without the relatively high costs - it means to make changes to the Criminal Code and to provide for the possibility of parole for lifers. Then these 10-20 people (at the most) will be released on parole after serving 15 years of imprisonment.
But there must be a political will, competent professional assessment of the situation and a verified legal resolution for such a decision.
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