PRACTICAL ISSUES OF RELEASE ON PAROLE
The Criminal Code of Ukraine provides the possibility for a separate category of convicted persons to be released, in whole or in part, from further serving a sentence after they have served a part of their sentence.
However, once the convicted acquires such right, he faces a number of practical and legal issues that make it impossible to implement. Such issues include an assessment of the reasons for his diligent conduct and attitude to work, procedure for enforcement by the enforcement institution (hereinafter referred to as the EI) of a court decision to apply release on parole, etc.
Thus, according to Part 1 of Art. 81 of the CC of Ukraine (hereinafter referred to as the CC of Ukraine), release on parole instead of serving a sentence may be applied to persons serving a sentence in the form of correction works, official restrictions of military servicemen, restriction of liberty, detention in a disciplinary battalion of servicemen or imprisonment. A person may be released on parole, in full or in part, and from serving additional punishment.
Parts two and three of Article 81 of the CC of Ukraine provide for two main grounds, in the presence of which the convicted person shall have the right to release on parole instead of serving a sentence.
The first reason is the actual detention of a certain part of the sentence. Part 3 of Article 81 of the CC of Ukraine provides for correlation of a part of the punishment to be imposed on the convicted person with the severity of the crime he committed.
If the first reason for release on parole does not arise questions, another reason is not that simple.
In accordance with paragraph 2 of Article 81 of the CC of Ukraine, release on parole instead of serving a sentence may be imposed if the convicted by his conscientious conduct and attitude to work proved his correction.
And then the question arises immediately. And what is: conscientious behaviour and conscientious attitude to work?
Unfortunately, the legislator does not provide us with clear definitions of concepts such as “conscientious behaviour” and “conscientious attitude to work”. Moreover, it is difficult to understand how high the level of “conscientious behaviour” and “conscientious attitude to work” should be, to confirm this by proving the convict’s correction.
However, neither the Criminal Code of Ukraine, nor the Criminal Executive Code of Ukraine (hereinafter referred to as the CEC of Ukraine), nor any other normative acts provide us with the legal “measure” that would enable us to determine the degree of correction of a convicted person and the existence of his “conscientious behaviour” and “conscientious attitude to work”.
In our opinion, concepts of “conscientious behaviour” and “conscientious attitude to work” in the Scientific and Practical Comments to the Criminal Code of Ukraine, as generalized by M.I. Melnyk and M.I. Khavroniuk as of 2018, are quite well explained.
Thus, “conscientious behaviour” means the exemplary observance of requirements of the regime, rules of the internal order; compliance with discipline; execution of instructions and orders of the administration of the penitentiary institution; presence of incentives and absence of penalties; participation in amateur organizations of convicts; friendly attitude towards other convicts.
In addition, conscientious behaviour implies not only the availability of convicted incentives applied in the manner stipulated by law, but also that it provides a positive example for the behaviour of other convicts.
A “conscientious attitude to work” should be understood as a good, responsible and honest attitude to the labour obligations imposed on the person; diligence, observance of the rules of labour regulations, requirements of labour legislation, rules of labour protection and safety; thrifty use of certain equipment, tools, materials, etc.
In determining the diligence of the convict’s behaviour and his attitude to work, not the individual acts, but a stable, constant line of conduct and life style of the convict are important. Information about this should be obtained from materials describing the behaviour of the convicted person not only for the period immediately preceding his submission for release on parole, but for the whole period of his serving a sentence, or at least for a significant period of this term.
In practice, when deciding on the issue of release on parole, the court evaluates each case individually. However, it should be noted that in most cases, if a convicted person, who has at least one non-repayment, in accordance with the procedure stipulated by law, of collection, and several incentives, release on parole will not be applied to such convict, if the characteristics of the State Penitentiary Service on him is negative.
The labour issue of the convicted person deserves particular attention while serving a sentence. Quite often, prosecutors draw attention of the court to the fact that the convicted person when serving a sentence in the form of imprisonment was not formally employed at the enterprise of the State Penitentiary Service and was not paid wages, and, therefore, there is no evidence to support the fact that the latter had “conscientious attitude to work”.
However, it should be borne in mind that not all correctional colonies can provide prisoners with jobs at the enterprise of the State Penitentiary Service. Moreover, it should be borne in mind that in some correctional colonies there may be no enterprises at all.
In accordance with paragraph 5 of Article 118 of the CEC of Ukraine, convicts may be involved without pay only for the work on the improvement of the colonies and adjoining territories, as well as improving the housing and living conditions of convicted persons or for supporting the provision of colonies with food.
That is, taking into account the provisions of Article 118 of the CEC of Ukraine, it should be noted that the official employment of the convicted person at the enterprise cannot be a compulsory requirement to prove a “conscientious attitude to work”.
Thus, in view of the above, we believe that in order to obtain the right to release on parole, the convict must:
- a) serve a part of the punishment provided for in Part 3 of Art. 81 of the Criminal Code of Ukraine;
- b) have conscientious attitude to work, that is, when the convict is brought to work, the latter must be responsibly treated with his labour duties; exercise diligence, observe the rules of labour regulations, requirements of labour legislation, labour safety and safety regulations, as well as use work equipment and tools carefully;
- c) have a conscientious behaviour, that is, to exemplarily comply with the requirements of the regime, rules of the internal order; discipline compliance; execution of instructions and guidance of the administration of the penitentiary institution, as well as participation in amateur organizations of convicts;
- d) have incentives and no penalties.
The presence of these four grounds will greatly increase the chances of a convicted person for applying a release on parole instead of serving a sentence.
However, after a positive decision of the court on release on parole, the defence party and the convicted person have another problem. The question arises: from what moment does the convict need to be released from detention facilities?
According to Part 1 of Art. 532 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine), a verdict or a ruling of a court of first instance, decision of an investigating judge, unless otherwise provided by this Code, shall become valid after the expiry of the term for filing an appeal, established by this Code, if no such complaint has been filed.
In accordance with Part 2 of Art. 532 of the CPC of Ukraine, in case of filing an appeal, a court decision, if it has not been cancelled, shall become valid after the decision of the court of appeal.
According to Part 4 of Art. 532 of the CPC of Ukraine, judgments of the court of appeal and cassation courts shall be valid from the moment of their proclamation.
As practice shows, court sessions on conditional release are considered in a videoconference with a penitentiary institution.
In case that the public prosecutor filed an appeal against the decision of the court of first instance, which applied the release on parole to the convicted person, and if the court of appeal left the prosecutor’s appeal dismissed, and the decision of the court of first instance – unchanged, taking into account the provisions of Part 4 of Article 532 of the CPC of Ukraine, a person must be released from detention facilities as soon as the decision of the court of appeal is announced. However, in practice, this is far from the case.
According to Part 5 of Art. 153 of the CEC of Ukraine, release on parole instead of serving a sentence shall be carried out on the day of receipt of the relevant documents, and if the documents are received after the end of the working day, during the first half of the next day.
Due to the heavy load, court staff in some cases cannot send on the same day a court decision to the State Penitentiary Service address. Even if they sent a court decision on the day of its announcement, at best it will be sent to the State Penitentiary Service within 3-4 days. That is, all this time the person will illegally stay in detention facilities.
An attorney can make a “tricky move” and get a “short text” of a court decision and deliver it to a colony personally; however, it is to the greatest regret that a court decision delivered directly by an attorney to staff members of the State Penitentiary Service is not sufficient grounds to release a convicted person the same day. Only after the postal receipt of the court decision at the address of the colony, the employees of the State Penitentiary Service will begin to execute the court decision and release the convicted person.
In this case, you can apply to the local court, within the territorial jurisdiction of which there is a State Penitentiary Service where the convict is detained, with the request for his immediate release in accordance with Art. 206 of the CPC of Ukraine.
However, as practice shows, this tool is not effective in all cases, since at the time of consideration of such petition, a person may already be released from detention facilities.
In other cases, the convicted person deliberately refuses to file such petition and agrees to wait until a court decision on his release on parole is submitted to the colony, which may be delayed from several days to several weeks, depending on the location of the penitentiary institution.
Attorney’s Assistance at JSC “Barristers”
Candidate of Legal Sciences Serhii Skvortsov