Why prisoners will not participate in the October 31 elections

The "Prison Portal" received the text of an Appeal from the president of the "Association for the Protection of Prisoners' Rights and Their Families," in which he insists that the non-participation of convicts in places of deprivation of liberty in local elections is a violation of the Constitution of Ukraine. Expert Iryna Yakovets believes that there is no violation. Below is the text of the Appeal and the expert’s commentary.

OFFICIAL APPEAL from the president of the Public Organization "Association for the Protection of Prisoners' Rights and Their Families."
On October 31, 2010, the Verkhovna Rada of Ukraine scheduled elections for deputies of local councils and for village, settlement, and city mayors. These elections will be held in accordance with the new Law of Ukraine "On elections of deputies of the Verkhovna Council of the ARC, local councils, and village, settlement, and city mayors." This Law, more than ever, infringes upon the constitutional rights of persons serving sentences in places of deprivation of liberty. Thus, clause 6 of Article 3 of the Law provides that citizens of Ukraine who, by a court verdict, are in places of deprivation of liberty are considered not to belong to any territorial community and do not have the right to vote in local elections. This provision of the Law, in our view, is unconstitutional, as Article 70 of the Constitution of Ukraine provides that adult citizens of Ukraine have the right to vote in elections. In turn, Article 141 of the Constitution of Ukraine states that local councils consist of deputies elected by the residents of the community on the basis of universal, equal, and direct suffrage. All places of deprivation of liberty are effectively located on the territory of one community or another, directly and indirectly interacting with each other. In turn, persons held in places of deprivation of liberty actually reside on the territory of one community or another, and by virtue of this, they have the right to express their opinion regarding the processes occurring in the community. Given the impossibility of voting in local elections, persons serving sentences cannot elect a deputy of a local council who could represent their interests in the community as residents of said community. I would like to note that at this moment, there are about 150,000 people in places of deprivation of liberty across Ukraine; exactly that many people have been groundlessly deprived of a voice, the voice to be heard through a representative. And if one takes into account individual regions, for example, the Luhansk region with 12,000 prisoners, or even more specifically, the city of Petrivske in the Luhansk region, where this category of citizens reaches 10–20% of the total number of residents.
At this moment, our organization is undergoing an evolution; we have submitted documents to obtain the status of an International Public Organization. Given that the Association for the Protection of Prisoners' Rights and Their Families has a wide network of representative offices both in Ukraine and abroad, we are fundamentally affected by the fact that, in accordance with the new Law, our voters' voices were essentially stolen from us, which hinders our ability to fully realize the vertical of protecting human and citizen rights in places of deprivation of liberty. All our representatives have effectively been deprived of the right to be elected to local self-government bodies. People behind bars want to be heard, but the state and the public turn a blind eye to them, ignoring them as if they do not exist.
It is precisely on the basis of the stated facts that I, as President of the Association for the Protection of Prisoners' Rights and Their Families, have written an appeal to the Constitutional Court of Ukraine with the aim of recognizing clause 6 of Article 3 of the new Law on local elections as contradicting the norms of the Constitution of Ukraine.
I ask all of you, and in particular each of you, to do everything in your power to prevent the violation of constitutional human rights.
Sincerely, President of the Association for the Protection of Prisoners' Rights and Their Families, Oleksandr Yevhenovych Klodchenko.

Commentary by expert, Candidate of Juridical Sciences Iryna Yakovets
"The assertion that 'All places of deprivation of liberty are effectively located on the territory of one community or another, directly and indirectly interacting with each other. In turn, persons held in places of deprivation of liberty actually reside on the territory of one community or another, and by virtue of this, they have the right to express their opinion regarding the processes occurring in the community' is groundless and contradictory.
The definition of 'territorial community,' both in the works of scholars and in current legislation, is characterized by various approaches and qualifying features. When defining these communities during the constitution of the institution of local self-government in Ukraine, the domestic legislator used various terms: 'territorial self-organization of citizens,' 'citizens residing on the territory,' 'population of administrative-territorial units,' 'territorial collective of citizens.' The current Constitution of Ukraine and the Law 'On local self-government in Ukraine' of 1997 introduce the category of 'territorial community,' understood as the totality of residents united by permanent residence within the limits of a village, settlement, or city, which are independent administrative-territorial units, or a voluntary association of residents of several villages that have a single administrative center.
Convicts are not persons who reside permanently in a colony, since under the Law of Ukraine 'On freedom of movement and free choice of place of residence in Ukraine,' a place of residence is an administrative-territorial unit where a person resides for a period exceeding six months per year. Freedom of movement is restricted for persons who, by a court verdict, are serving a sentence in the form of deprivation or restriction of liberty. The free choice of place of residence is restricted for persons who, by a court verdict, are serving a sentence in the form of deprivation or restriction of liberty (Art. 12 of this Law).
Convicts DO NOT RESIDE in a colony; they are serving a sentence there. It is precisely on this basis that their registration at the colony's address is NOT conducted. In other words, convicts do not belong to the category of 'territorial community' based on the location of the correctional colony.
This conclusion is also confirmed by the provisions of part 6 of Article 3 of the Law of Ukraine 'On elections of deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local councils, and village, settlement, and city mayors,' according to which: '...citizens of Ukraine who, by a court verdict, are in places of deprivation of liberty, are considered not to belong to any territorial community and do not have the right to vote in local elections.'
It is necessary to draw attention to three more points.
Firstly, as enshrined in part 2 of Article 7 of the Penitentiary Code of Ukraine, 'convicts enjoy all human and citizen rights provided for by the Constitution of Ukraine, with the exception of restrictions determined by this Code, the laws of Ukraine, and established by a court verdict.' It is precisely such a restriction that is established by the Law of Ukraine 'On elections of deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local councils, and village, settlement, and city mayors';
Secondly, among convicts serving sentences in places of deprivation of liberty, about 30% of persons not only did not reside within the limits of that administrative-territorial unit prior to conviction, but were not even within the limits of the region. Given this, it is hardly feasible to grant them the opportunity to influence the resolution of local community problems, as this could lead to the adoption of decisions that do not correspond to them.
Thirdly, the Constitution of Ukraine in part 2 of Article 64 exhaustively defines the list of human and citizen rights that cannot be restricted or revoked under any circumstances. The right to participate in the elections of local self-government bodies is not included therein.
Under these conditions, one cannot speak of the unconstitutionality of the provisions of part 6 of Article 3 of the Law of Ukraine 'On elections of deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local councils, and village, settlement, and city mayors.'"