Problems of cooperation between the Department and supervisory commissions

In the practice of exercising public control, there are cases of unlawful refusal to allow representatives of supervisory commissions to communicate with convicts, as well as the refusal to admit to a penal institution those members of the latter who have been held criminally liable, even on the condition that the conviction has been expunged in the manner prescribed by law.

Such a practice cannot be considered lawful. According to the provisions of part 2 of Article 25 of the Penal Executive Code of Ukraine, supervisory commissions are created to ensure public control over the observance of the rights of convicts during the execution of criminal sentences. At the same time, this norm defines that supervisory commissions act on the basis of the Regulations on Supervisory Commissions, approved by the Cabinet of Ministers of Ukraine (Resolution No. 429 of 01.04.2004). This document is the main normative legal act that determines the powers and procedure for the activity of supervisory commissions. A similar norm is contained in the Law of Ukraine “On the State Penal Enforcement Service of Ukraine.”

Clause 6 of the Regulations on Supervisory Commissions stipulates that supervisory commissions have the right to instruct commission members to: – visit penal institutions, study the state of material and living conditions and medical-sanitary provision of convicts, their working and studying conditions, and the state of the organisation of social-educational work; – receive from public organisations, executive bodies, local self-government bodies, penal bodies and institutions, enterprises, institutions, and organisations regardless of their form of ownership, information and documents necessary for fulfilling the tasks assigned to the supervisory commissions; – conduct personal receptions of convicts, consider their appeals, and make decisions on them.

Therefore, as follows from the content of the above-mentioned norm, members of the supervisory commission, while in the colony, do not have “visitations” with convicts, but conduct a “personal reception.” Therefore, restricting visitations of supervisory commission members with convicts on the basis of clause 46 of the Internal Regulations of Penal Institutions is unlawful. This clause concerns the procedure for granting visits and telephone conversations to convicts with relatives and other persons, not the procedure for conducting a personal reception.


Also, a violation of current legislation is the restriction of the admission of members of supervisory commissions who have been held criminally liable, provided the conviction has been expunged. The Regulations on Supervisory Commissions clearly define which persons cannot be part of them under any circumstances. These are: judges, representatives of the prosecutor's office, justice bodies, internal affairs bodies, security services, the State Penal Enforcement Service, lawyers, as well as persons who have a conviction that has not been expunged or removed in the manner prescribed by law (cl. 8 of the Regulations). Based on the above, any other persons, including those whose conviction has been removed or expunged in the manner prescribed by law, have the right to be members of a supervisory commission and, accordingly, to realise the assigned powers within the limits defined by the Regulations on Supervisory Commissions.

At the same time, neither current legislation nor departmental normative legal acts grant the administration of penal institutions or territorial bodies of the Department the right to independently make decisions on restricting the activity of supervisory commissions (including on the exercise of public control over the observance of convicts' rights). Such actions directly contradict the provisions of Article 25 of the Penal Executive Code of Ukraine.

Regarding the restriction of the activities of individual members of supervisory commissions, the Regulations on Supervisory Commissions provide for the possibility of terminating their powers exclusively in three cases:

– by personal statement;

– upon the request of a public organisation, executive body, local self-government body, enterprise, institution, or organisation that recommended the person to the commission;

– in connection with a conviction against them entering into legal force.

The Regulations do not provide for other grounds for terminating the powers of a member of a supervisory commission, including those based on the own reasoning of the colony administration representatives. Moreover, granting members of supervisory commissions the rights indicated in clause 6 of the Regulations on Supervisory Commissions, namely the wording “have the right,” allows one to assert the existence of an obligation on the part of the relevant bodies and institutions to perform the actions necessary for the realisation of the rights granted to the members of the supervisory commission. Regarding restrictions on the activities of supervisory commissions, they are also defined in the Regulations on Supervisory Commissions in the following wording: “When exercising their powers, supervisory commissions are not entitled to interfere with the operational-service activities of penal bodies and institutions.” No other restrictions are provided for in current normative legal acts.

As our research shows, the activity of supervisory commissions in the vast majority of regions is exclusively formal in nature. All documents (extracts from the minutes of joint meetings, motions, etc.) are prepared by the administration of the penal institutions themselves, and representatives of the supervisory commissions merely apply their seal and receive their copy of the documents. No visits to institutions or participation in committee meetings are carried out. In a number of regions of Ukraine, there are reverse cases where members of supervisory commissions refuse to agree to the motions of penal institution administrations regarding the application of Article 81 or 82 of the Criminal Code of Ukraine on grounds not provided for by law, in particular, based on the composition of the crime (this especially concerns convicts for rape and a number of other crimes against the person). Formally, the regulation on the supervisory commission, approved by the resolution of the Cabinet of Ministers of Ukraine, when assigning these commissions the authority: “...together with penal bodies and institutions, submit to the court.... motions regarding the conditional early release of convicts...”, does not provide for grounds on which they can refuse to perform such actions.

However, since supervisory commissions are guided by various legislative acts in their activities, including the Penal Executive Code of Ukraine, it seems that a refusal to send a joint motion may still take place on the part of the supervisory commission on the same grounds that the administration of the penal institution is guided by when making a decision on the expediency of presenting a convict for conditional early release.

As the analysis of the provisions of the Penal Executive Code of Ukraine shows, the administration of a penal institution may make a decision on the inexpediency of presenting a convict for conditional early release only in the event that they have not proven their reformation, a conclusion which is made on the basis of the convict’s behaviour and attitude towards work for the entire period of serving the criminal sentence. If a supervisory commission, when refusing to submit a joint motion for conditional early release to the court, is guided by any other circumstances, its actions are unlawful and violate, first of all, the norm of Article 81 of the Criminal Code of Ukraine.

Moreover, considering that supervisory commissions are a body whose one of the main areas of activity is precisely public control over the observance of the rights, freedoms, and legal interests of convicts, a refusal to send a joint motion, which effectively violates the legal interests and rights of convicts, entails a failure to perform the main duty of the supervisory commission. At the same time, supervisory commissions are not familiarised with the files of persons who, by the decision of the institution’s commission, have been denied conditional early release or the replacement of the unserved part of the sentence with a milder punishment. Their absence at the joint meetings of the institution’s commission also excludes the possibility of realising the authority to exercise public control over the observance of the rights and legal interests of convicts upon the refusal to apply Article 81, 82 of the Criminal Code of Ukraine