The new regulations on pardons have effectively deprived convicts of ‘mercy’

On 16 September 2010, the President issued a Decree approving the Regulations on the Procedure for Granting Pardons. Unlike its predecessor, this act has narrowed the already highly limited possibility of utilising the institution of a pardon. Let us attempt a comparative analysis of the two acts and determine how the head of state’s ‘mercy’ has changed.
The new regulations contain a provision that significantly narrows the range of persons eligible for, and the actual possibility of, petitioning for a pardon for a significant number of convicts.
Clause 6 of the Decree states that petitions for the pardon of convicts who have not begun the path of reform or have not served half of their assigned sentence, as well as petitions from persons convicted of grave or especially grave crimes, may be granted only in the presence of circumstances requiring especially humane treatment.
If one examines this clause carefully, it becomes clear that a pardon without any restrictions can be applied only if the convict meets the following criteria:
- the punishment was assigned for crimes of negligence (with the exception of grave negligent crimes), or for crimes of minor or medium gravity;
- the convict must have begun the path of reform;
- the convict must have served at least half of the sentence assigned by the court.
These criteria significantly restrict the possibility of release through a pardon, as we believe two of these features must be present in the convict simultaneously. Firstly, the punishment must have been assigned for a crime of minor or medium gravity, and secondly, the convict must have served at least half of the sentence. Consequently, the presidential Decree has established criteria that a person seeking a pardon must meet.
It should be noted here that the previous Decree was more lenient and accessible to convicts. A similar Clause 6 included two categories of convicts and provided for conditions under which a convict could be eligible for release:
1) the convict must have begun the path of reform and served a significant portion of their sentence;
2) a person convicted of an especially grave crime must have served half of the assigned sentence.
The first category is evaluative and provides more scope for an individual approach to a convict’s petition. The second category demonstrates that, under the old rules, the possibility of release via a pardon was limited for convicts who posed a high degree of danger to society. A person convicted of an especially grave crime who has served less than half of their sentence must endure the punitive impact of the sentence for much longer than other convicts. According to Article 12 of the Criminal Code of Ukraine, a crime is deemed especially grave if it is punishable by a term of more than ten years or life imprisonment. Thus, restricting the possibility of release via a pardon is understandable and logical.
The new Regulations establish higher requirements for those wishing to be released through a pardon. As we stated above, a convict submitting a pardon petition must, at a minimum, have been convicted of a crime of minor or medium gravity and have served half of the sentence assigned by the court. Based on the provisions of Article 12 of the Criminal Code of Ukraine, this means the convict must have been sentenced to a term of no more than five years and, accordingly, served at least two and a half of those years. As an additional criterion, the question of whether the convict has begun the path of reform is used. The legislator calls these cases ‘exceptional’ and ones that ‘require especially humane treatment’. However, it is obvious that a person who meets these criteria poses a significantly lower degree of danger to society. It is therefore unclear why the legislator is introducing such strict restrictions on the possibility of utilising the institution of a pardon for relatively non-dangerous convicts. Furthermore, given the presence of similar criteria (a negligent crime, a crime of minor or medium gravity, serving half of the sentence, following the path of reform), a convict gains the possibility of parole. This institution is more operational, accessible, and acceptable to most convicts than filing a petition for a pardon.
By establishing such a restriction, the legislator has left a significant number of convicts—who only a year ago could have hoped for a pardon—outside the scope of the evaluative concept of ‘especially humane treatment’. Incidentally, raising the ‘threshold’ for a pardon makes the possibility of a pardon doubtful for persons sentenced to life imprisonment. These individuals can submit a petition for a pardon only after the expiration of a twenty-five-year sentence, and it is clear that they will not ‘fit’ into the category of those whose pardon petitions can be considered without any additional requirements or evaluations.
Some provisions of the new Decree also seem strange, specifically those regarding the consideration of certain circumstances when deciding on the possibility of applying a pardon to a convict.
In particular, the Regulations state that when deciding on a pardon, ‘...sincere repentance, active assistance in solving the crime, and the person’s conduct and attitude towards work prior to conviction...’ are taken into account. All of these listed ‘criteria’ contradict the doctrine of criminal and criminal-executive law, as these circumstances should be taken into account by the court when assigning a sentence, and they influence, and often determine, the extent of the punishment to be applied to the defendant. That is, the assigned criminal sentence is itself the evaluative ‘measure’ of the person’s repentance, their assistance in solving the crime, etc. It is in the verdict that the court takes into account all these circumstances and embodies them in a specific measure of punishment. Consequently, taking into account factors that have already been considered—and regarding which there is a court decision pronounced in the name of the state—when deciding on a pardon seems inappropriate and redundant to the functions of the court.
Furthermore, one of the basic principles of criminal-executive law is the assumption of the possibility of reform and resocialisation for the convict. The idea of punishment is that it is capable of changing a person for the better. A large number of norms in criminal-executive legislation are oriented towards this principle. Therefore, establishing such ‘criteria’ in the Regulations as repentance, assistance in solving a crime, and the person’s conduct and characteristics prior to conviction signifies a ‘distrust’ of the domestic model of the criminal-executive service on the part of the state itself. If the system were working effectively and lawfully, a person could only become more positive and socially acceptable.
All these provisions in their totality, on the one hand, testify to their doctrinal nature, as they change the very idea of a pardon. On the other hand, unfortunately, these doctrinal changes indicate that the institution of a pardon is becoming more difficult for the convict and is oriented, above all, towards persons who pose a low level of danger to society.
In other words, the unique chance for release that a pardon represents by its very legal nature (as its main feature is the absence of restrictions regarding the possibility of a pardon) is becoming something impossible for the majority of convicts in our state.