EVERY CONVICT ‘OVERSTAYS’ THEIR TIME IN PRISON BY ONE DAY

The vast majority of convicts are released from penal institutions not on the last day of the sentence term (as provided for by the CEC of Ukraine), but only on the following day. To eliminate the unfair practice of calculating the terms of different types of punishments, it is necessary to introduce appropriate changes to the current criminal-executive legislation.
One of the key issues arising in the process of executing criminal punishments is the problem of calculating the terms established by the Criminal-Executive Code of Ukraine (hereinafter—the CEC of Ukraine), since in practice a number of problematic aspects arise, the resolution of which is carried out in different ways in different units of the State Criminal-Executive Service.
For example, regarding the problem of the procedure for determining the moment of the beginning and end of the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity, in our view, it can be resolved in different ways.
First option: Part 3 of Article 55 of the Criminal Code of Ukraine (hereinafter—the CC of Ukraine) establishes that when assigning a punishment in the form of deprivation of the right to hold certain positions or engage in a certain activity as an additional punishment to arrest, restriction of liberty, detention in a disciplinary battalion for military personnel, or deprivation of liberty for a fixed term, it extends for the entire time of serving the main punishment and, in addition to this, for the term established by the court verdict that has entered into legal force.
As provided for by Part 1 of Art. 153 of the CEC of Ukraine, the serving of a punishment in the form of arrest, restriction of liberty, detention in a disciplinary battalion for military personnel, or deprivation of liberty ceases in the first half of the last day of the punishment term.
Thus, the released person begins to serve the punishment in the form of deprivation of the right to hold certain positions or engage in a certain activity on the day of release (from this moment, the term established by the court verdict begins to run for them). Under such circumstances, if a person, for example, was released from places of deprivation of liberty on 15 December 2006, the running of the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity for them must also begin on 15 December 2006.
In other words, the start of the term of this type of punishment will be precisely 15 December 2006—the day of release from places of deprivation of liberty. As for the end date of the punishment term, when calculating the term in years, it ends on the last day of the year's course. For example, if according to the court verdict the punishment term of 3 years is calculated from 14 March 2004, it ends on 13 March 2007. In this case, the number of days in the year (i.e., whether the year is a leap year) does not matter.
Part 2 of Art. 153 of the CEC of Ukraine establishes that when calculating terms in months, the term ends on the corresponding date of the last month, and when that month does not have the corresponding date—on the last day of that month.
That is, if the term is defined in months, it ends on the last day of the month's course. For example, if the punishment is defined as nine months and its term begins on 5 January 2006, it ends on 4 October 2006. In this case, the number of days in each month does not matter. Current legislation provides that if there is no corresponding date in the month, the person is released on the last day of the month. For example, if a person is assigned a punishment of 6 months and its term begins on 31 May 2006, it ends on 30 November 2006.
In a similar way, taking into account astronomical calculation, the punishment term in years should be calculated. Based on this, a punishment term of 1 year that began on 5 December 2006 must end on 4 December 2007.
The second option consists of the following: Part 2 of Art. 55 of the CC of Ukraine establishes two ways of calculating the beginning of the term of this punishment:
– if it is assigned as an additional to deprivation or restriction of liberty, arrest, or detention in a disciplinary battalion for military personnel—the beginning of the term is calculated from the moment of serving the main punishment;
– when assigning a punishment in the form of deprivation of the right to hold certain positions or engage in a certain activity as an additional to other main punishments, and also in the case of applying Art. 77 of the CC of Ukraine—from the moment the verdict enters into legal force.
The Instruction on the procedure for executing punishments not involving deprivation of liberty, and the exercise of control over persons sentenced to such punishments, approved by the joint order of the State Department of Ukraine for Execution of Punishments and the Ministry of Internal Affairs of Ukraine No. 270/1560 of 19 December 2003, additionally regulates that the term of the punishment in the form of deprivation of the right to hold certain positions or engage in a certain activity, assigned as a main punishment, is also calculated from the day the verdict enters into legal force.
When determining the moment of serving the main punishment, it should be remembered that a person will be considered as having served the main punishment only after the end of the last day of the punishment term (after the end of the last astronomical day of stay in places of deprivation of liberty). Therefore, a person will be considered as having served the punishment only on the day following the actual release, because the latter, as defined in Part 2 of Art. 153 of the CEC of Ukraine, occurs in the first half of the last day of the punishment term.
Since the running of a day begins at 0 hours, the running of the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity must also begin from 0 hours of the day following the last day of the main punishment term (or the last day of stay in places of deprivation of liberty).
For example, a person was released from places of deprivation of liberty on 15 December 2006. In this case, the running of the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity must begin from 16 December 2006, i.e., from 0 hours of the day following the last day of the main punishment term. Calculating the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity from 0 hours on 15 December 2006 would be incorrect, as at that time the last day of the punishment term had not yet finished.
In other words, the running of the term, which is calculated in years and months, begins from the day following the occurrence of the event which is stipulated as its beginning. Thus, the term of an additional punishment in the form of deprivation of the right to hold certain positions or engage in a certain activity in the case of the convict’s release from a correctional institution on 15 December 2006 must begin from 0 hours on 16 December 2006.
As for the moment of the end of the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity, the current criminal-executive legislation clearly defines it. Thus, in Part 1 of Art. 153 of the CEC of Ukraine, it is established that the serving of the punishment in the form of deprivation of the right to hold certain positions or engage in a certain activity ceases in the first half of the last day of the punishment term.
The general approach to the rules for calculating terms stems from the provisions of Part 2 of this article. It, in particular, provides that when calculating terms in months, the term ends on the corresponding date of the last month.
Therefore, for example, if the beginning of the punishment term in the form of deprivation of the right to hold certain positions or engage in a certain activity with a duration of 3 years is 25 March 2006, its term will end on 25 March 2009.
In some cases, it is erroneously determined that the date of the end of the punishment term will be 24 March 2009. This fact is explained by the argument that the next astronomical year will elapse precisely on this day. But such an approach seems not entirely correct. As already indicated, it follows from the provisions of the current legislation (Part 2 of Art. 153 of the CEC of Ukraine) that terms associated with the course of time end on the corresponding date, and the corresponding date is the one with which the beginning of the calculation of the punishment term is associated. It is necessary to note that according to the rules cited above, calculations of the end of punishment terms in the form of deprivation of liberty, restriction of liberty, and arrest are currently being conducted in practice by the administration of penal institutions. A similar calculation order was established by a departmental regulatory act of the State Department of Ukraine for Execution of Punishments (the order on the procedure for organising the work of departments for monitoring the execution of court decisions).
In it, in particular, it is explained (with examples provided) that if a punishment term of 10 months begins on 24 July 1998, then 10 full months end on 24 May 1999. It is on this basis that in penal institutions the date of the end of the punishment term is always identical to the date of its beginning (with the exception of cases of counting a separate number of days into the punishment term).
Thus, from what has been said, one can draw the unfortunate conclusion that the vast majority of convicts are released from penal institutions not on the last day of the punishment term (as provided for by the CEC of Ukraine), but only on the following day, which, undoubtedly, violates the rights of these individuals. In order to eliminate the possibility of the existence of different approaches to the rules for calculating the terms of different types of punishments, it is necessary to introduce appropriate changes to the current criminal-executive legislation or at least resolve this problem uniformly for all bodies and institutions of the execution of punishments at the departmental level.