15 Years Without the Death Penalty

By the decision of the Constitutional Court of Ukraine of 29 December 1999, the criminal punishment of ‘death penalty’ was recognised as unconstitutional. With a four-year delay, Ukraine fulfilled its obligations upon joining the Council of Europe. During the period from Ukraine’s accession to the Council of Europe in November 1995 until 17 March 1997, when the President simply stopped granting consent for executions, 217 people sentenced to death were executed, although they should have remained alive.
At the same time, no moratorium was introduced; executions simply ceased under the threat of Ukraine’s expulsion from the Council of Europe for failure to fulfil its obligations. For more than 450 people sentenced to death as of the end of 1999, the sentence was commuted to life imprisonment. Ardent supporters of the death penalty threatened that its abolition would lead to a surge in murders. However, the annual number of murders decreased from 4,500–4,700 in 1999–2001 to 2,300–2,500 in 2011–2012.
Conditions for life-sentenced prisoners have become slightly better over these 15 years but continue to remain extremely harsh, often unjustifiably so. Only in 2014 were they permitted long-term visits; they cannot count on parole, and almost none of them are employed. Such is the context of their existence, in which the state expects ‘correction’ from them.
Although the criminal punishment of ‘death penalty’ has been absent in Ukraine for a decade and a half, some nuances regarding its replacement with life imprisonment have yet to find a firm legal justification. Doubts are largely generated by the far-from-impeccable procedure for introducing the new punishment—‘life imprisonment’—which was introduced on 3 April 2000, more than three months after the Constitutional Court of Ukraine’s decision of 29 December 1999. Particularly serious grievances exist regarding the Constitutional Court of Ukraine’s (hereinafter—CCU) decision of 26 January 2011, ‘Case on the replacement of the death penalty with life imprisonment’, which allegedly justifies the legality of imposing the punishment of ‘life imprisonment’ on all persons who committed crimes before 3 April 2000. The Constitutional Court treats them all as an indivisible category, in which either a death sentence had already been passed and simply not yet carried out, or a death sentence could have been passed, but they were subsequently sentenced to life imprisonment—a more lenient punishment.
At the same time, the judges of the Constitutional Court, perhaps as a result of their incompetence, poor professional training, or excessive bias due to political factors, committed a gross error: they combined two categories of persons who committed crimes before the introduction of the ‘life imprisonment’ punishment, i.e., before 3 April 2000. On one hand, those who committed crimes before 29 December 1999, i.e., in the period when the most severe punishment was the death penalty, and on the other, those who committed crimes in the period from 29 December 1999 to 3 April 2000, when the most severe punishment in the Criminal Code remained 15 years’ imprisonment. It is precisely for persons in this latter category that the ‘death penalty’ no longer posed a threat, as it could not be imposed. And that is why talking about replacing the death penalty for them is not only meaningless but also legally illiterate. After all, Part 2 of Article 4 of the Criminal Code of Ukraine explicitly provides: ‘The criminality and punishability of an act, as well as other criminal-law consequences of an act, are determined by the law on criminal liability in force at the time of the commission of that act.’
Why, then, does the Constitutional Court of Ukraine extend the procedure of replacing the ‘death penalty’ with ‘life imprisonment’ not only to persons who committed crimes before 29 December 1999, when the ‘death penalty’ existed in law, but also to persons who committed crimes in the period from 29 December 1999 to 3 April 2000, when it no longer existed?
It is astounding, but in its decision of 26 January 2011, the Constitutional Court of Ukraine declares a position according to which criminal law can only be changed by another law, and by no means by a Constitutional Court decision that abolished the death penalty. According to the judges’ logic, the ‘death penalty’ punishment remained in law even after the CCU decision of 29 December 1999. In other words, the law on the application of the death penalty allegedly continued to exist after the CCU decision, and it was only changed by Law No. 1483, which provided for ‘life imprisonment’ and entered into force on 3 April 2000.
However, this conclusion of the Court contradicts Part 2 of Article 152 of the Constitution of Ukraine, according to which ‘Laws, other legal acts, or their individual provisions lose effect from the day the CCU adopts a decision on their unconstitutionality.’ Therefore, the law on the application of the death penalty was not in effect from 29 December 1999. In fact, the absence of a law or the cessation of its effect leads to the same consequences—the impossibility of its application.
In the period from 29 December 1999 until the entry into force of the Law providing for ‘life imprisonment’ on 3 April 2000, the maximum criminal punishment for especially grave crimes was 15 years’ imprisonment, as the death penalty had ceased to have effect. This conclusion is also contained in the opinions provided by:
- M. I. Syryi, Senior Researcher at the Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Candidate of Legal Sciences;
- S. V. Kivalov, Chairman of the Verkhovna Rada Committee on Justice;
- V. I. Tyutyuhin, Professor at the Yaroslav Mudryi National Law Academy of Ukraine.
The validity of the arguments regarding the inapplicability of the procedure for replacing the death penalty with life imprisonment for persons who committed crimes in the period from 29 December 1999 to 3 April 2000 is also confirmed by a number of court decisions in 2009–2010 (before the Constitutional Court’s decision of 26 January 2011). Back then, courts rightly replaced the punishment of life imprisonment with 15 years’ imprisonment for persons who had committed crimes during that period but had been wrongly sentenced to life. Thus, albeit not immediately, judicial errors were being corrected.
This practice of correcting errors ceased after the Constitutional Court’s decision of 26 January 2011. As a result, regarding persons in exactly the same legal situation, two completely different judicial approaches exist in Ukraine: for some, the erroneously imposed ‘life imprisonment’ sentences have been replaced with 15 years’ imprisonment, while others have been refused such a replacement.
The CCU decision of 26 January 2011 contradicts the International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16 December 1966, which was ratified by Ukraine on 19 October 1973. Article 15 of this international document states: ‘nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.’ The same is stated in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Constitutional Court, in providing an interpretation regarding the application of life imprisonment to persons who committed crimes in the period from 29 December 1999 to the entry into force of Law No. 1483 on 3 April 2000, indicated in point 4: ‘…the alternative nature of the sanctions of the articles of the 1960 Code, which provided for punishment for especially grave crimes, did not provide grounds for courts to impose a different punishment instead of the death penalty before its replacement by the Verkhovna Rada of Ukraine with life imprisonment.’ It is unclear what Law the Court was guided by in reaching such a conclusion. This conclusion of the Court is far-fetched and not legal.
Furthermore, in its decision of 26 January 2011, the Constitutional Court refers to the practice of the European Court of Human Rights, in particular, the decision in the case of ‘Scoppola v. Italy’ of 17 September 2009, application No. 10249/03. But even here, the Constitutional Court acts, to put it mildly, incorrectly: by citing this decision, the Court refers to it but does not fully quote the sentence and does not indicate that the European Court of Human Rights concluded that there had been a violation of Article 7(1) of the Convention regarding Scoppola.
It should be acknowledged—and the sooner, the better—that the application of the measure of ‘life imprisonment’ to persons who committed crimes in the period from 29 December 1999 to 3 April 2000 is a violation of Article 7(1) of the European Convention on Human Rights and Article 4(2) of the Criminal Code of Ukraine.
It is very regrettable that no institution in the state—neither the Verkhovna Rada, the General Prosecutor’s Office, the Supreme Court, the Constitutional Court, nor even the Commissioner for Human Rights—wishes to undertake the correction of the errors made by the Constitutional Court in 2011, as well as by the courts of Ukraine in 2000–2003.
At the same time, from 29 December 2014, a period begins when persons who committed crimes in the period from 29 December 1999 to 3 April 2000, and who could have been punished with a maximum of 15 years’ imprisonment, will have been in custody for more than 15 years. This means that once the Constitutional Court’s error is corrected, they will have legal grounds to file lawsuits regarding their effectively illegal detention beyond the 15-year term of imprisonment.
The following option for the future is not excluded: in the event of won lawsuits and material compensation for moral damages, the state may try to recoup the costs of such compensation from the judges of the Constitutional Court who adopted the unlawful decision in 2011. And such a prospect becomes more real with each passing day.
There is another way to resolve the situation with relatively low costs for the state—to amend the Criminal Code to provide for the possibility of parole for life-sentenced prisoners. Then these 10–20 people (and there are no more than that) could be released on parole after having effectively served 15 years of imprisonment.
But for such a decision, there must be political will, a competent professional assessment of the situation, and a verified legal solution.