Analysis of the draft law:
Analysis of the Draft Law of Ukraine “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine Regarding Measures Aimed at Restoring the Rights of Convicted Persons and Persons Taken into Custody, in Connection with Inadequate Conditions of Detention”
Good day! I am pleased to present you with an analysis of an important draft law concerning the rights of convicts and persons taken into custody. This draft law aims to ensure the restoration of the rights of persons held in inadequate conditions in places of deprivation of liberty. In fact, it provides mechanisms for compensation for inadequate conditions of detention by reducing sentences and the possibility of early removal of criminal records. It also defines the procedure for appealing decisions regarding the establishment of the fact and/or duration of detention in inadequate conditions.
Structure and Main Provisions of the Draft Law
The draft law consists of amendments to two codes of Ukraine: the Criminal Code and the Criminal Procedure Code.
- Amendments to the Criminal Code of Ukraine:
- Articles 81 and 107 (Parole): Supplemented with a provision on reducing the term of punishment after which parole may be applied, by the period of detention of a person in inadequate conditions.
- Article 82 (Replacement of the Unserved Portion of the Sentence with a Milder One): Supplemented with a provision on reducing the unserved portion of the sentence, which may be replaced with a milder punishment, by the period of detention of a person in inadequate conditions.
- Article 91 (Expungement of Criminal Record): Supplemented with a provision on the possibility of expunging a criminal record before the established terms expire in the event that the fact of detention of a person in inadequate conditions is established.
- Amendments to the Criminal Procedure Code of Ukraine:
- Article 537 (Issues Decided by the Court During the Execution of Court Decisions): Supplemented with a clause on appealing the decision of the commission on consideration of complaints about inadequate conditions of detention and a part defining the procedure for appealing.
- Article 538 (Procedure for Considering Issues Decided by the Court During the Execution of Court Decisions): Supplemented with a part on the right of a person to apply to the court within six months after serving the sentence with a petition to establish the fact and duration of detention in inadequate conditions for the purpose of expunging the criminal record.
- Article 539 (Appealing Decisions, Actions or Inaction of Bodies and Officials of the State Penitentiary Service of Ukraine): Technical amendments are made to align with the newly introduced paragraph 131 of Article 537.
Main Provisions Important for Different Groups
This draft law has potentially important consequences for various stakeholders:
- For legislators: It is necessary to assess the financial consequences of the implementation of the law, in particular the costs of compensation and improvement of detention conditions. It is important to ensure a clear and effective mechanism for implementing the law to avoid abuse.
- For experts: Clear criteria for determining “inadequate conditions of detention” need to be developed to ensure objectivity and fairness in the consideration of complaints.
- For business: The law may affect the investment climate, as respect for human rights is an important factor for international partners. Also, companies providing services to the penitentiary system may experience changes in the requirements for detention conditions.
- For citizens: The law provides additional tools to protect the rights of convicts and persons taken into custody. This contributes to increasing the level of trust in the judicial system and the state as a whole.
I hope this analysis was helpful to you. If you have any further questions, please contact us.
Analysis of the explanatory memorandum:
Analysis of the draft law on the rights of convicts
Good day! Today we will review an important draft law that concerns improving the conditions of detention of convicts and persons taken into custody, and restoring their rights in connection with inadequate conditions of detention.
1. Essence of the draft law
This draft law aims to amend the Criminal Code and the Criminal Procedure Code of Ukraine to ensure respect for the rights of convicts and those in custody, in particular by introducing compensation mechanisms for inadequate conditions of detention. It provides for the possibility of reducing the term of punishment or expunging the criminal record for persons held in inadequate conditions, and also defines the procedure for appealing decisions regarding detention conditions.
2. Reasons for and necessity of adopting the draft law
According to the authors of the explanatory memorandum, the main reason for developing this draft law is the decision of the European Court of Human Rights in the case of “Sukachov v. Ukraine”. In this decision, it was established that Ukraine has a systemic problem regarding inadequate conditions of detention and the lack of effective remedies in such cases. The need to adopt this act is also emphasized by the European Committee for the Prevention of Torture and the Committee of Ministers of the Council of Europe. The purpose of the draft law is to bring Ukrainian legislation into line with European standards in the field of human rights protection.
3. Main consequences of the draft law
The introduction of this draft law may have significant consequences for various stakeholders:
- For legislators: It will allow fulfilling Ukraine’s international obligations and improve the country’s image in the international arena.
- For experts: The draft law will require careful analysis and development of mechanisms for its implementation, as well as monitoring the effectiveness of the application of new norms.
- For business: The implementation of this law does not foresee a direct impact on business, but the creation of a more humane and fair system of execution of punishments may positively affect the overall investment climate.
- For citizens: The draft law will provide additional guarantees of protection of the rights of persons in places of deprivation of liberty and the possibility of receiving compensation for inadequate conditions of detention. This will help increase the level of trust in the judicial system and law enforcement agencies.
The most important consequence is the introduction of compensation mechanisms, in particular, the reduction of the term of punishment or the expungement of the criminal record, which may significantly affect the fate of specific people who have suffered from inadequate conditions of detention.
I hope this analysis was helpful to you. Thank you for your attention!
Analysis of other documents:
Analysis of documents on the draft law on the rights of convicts
1. Cover letter from the Cabinet of Ministers of Ukraine
Author’s position: The Cabinet of Ministers of Ukraine is the author and initiator of the draft law. Therefore, it fully supports this draft law and proposes that the Verkhovna Rada consider it.
Main provisions:
- The Cabinet of Ministers submits to the Verkhovna Rada the draft Law of Ukraine “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine Regarding Measures Aimed at Restoring the Rights of Convicted Persons and Persons Taken into Custody, in Connection with Inadequate Conditions of Detention”.
- The Minister of Justice, Herman Halushchenko, will present this draft in the Verkhovna Rada.
- The letter includes all the necessary materials for consideration of the draft law: the text of the draft law, the draft resolution of the Verkhovna Rada, the explanatory memorandum, the comparative table, the list of acts and electronic versions of these materials.
Importance for stakeholders:
- Legislators: Have a complete package of documents for consideration and discussion of the draft law.
- Experts: Get access to all materials for analysis and recommendations.
- Business and citizens: Are informed about the initiative of the Cabinet of Ministers to improve the rights of convicts and persons taken into custody.
2. Draft Resolution of the Verkhovna Rada of Ukraine
Author’s position: The author of the draft Resolution is the Cabinet of Ministers of Ukraine. The draft proposes that the Verkhovna Rada adopt the draft Law as a basis, which indicates support for the draft law.
Main provisions:
- It is proposed to adopt as a basis the draft Law of Ukraine “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine Regarding Measures Aimed at Restoring the Rights of Convicted Persons and Persons Taken into Custody, in Connection with Inadequate Conditions of Detention”.
- The Committee of the Verkhovna Rada of Ukraine on Law Enforcement is instructed to finalize the draft law, taking into account comments and suggestions, and submit it for consideration in the second reading.
Importance for stakeholders:
- Legislators: Receiving a proposal to adopt the draft law as a basis and further work on it.
- Experts: Information on the stages of consideration of the draft law and the possibility of providing comments and suggestions.
- Business and citizens: Are informed that the draft law is under consideration in the Verkhovna Rada.
