On the Analysis of the Regulation on the Procedure for Exercising Pardons (Subjective Impressions Regarding an Objective Analysis)
Recently, the President approved the text of the updated Regulation on the Procedure for Exercising Pardons via Decree. One of the first to react was Vadym Chovhan.
Vadym Chovhan (VC): ‘As far as I understand, the Head of the Pardons Department of the Presidential Administration of Ukraine, O. Bukalov, was directly involved in its development. It will be interesting to compare the adopted act with what Oleksandr Pavlovych proposed as head of the human rights organisation “Donetsk Memorial” and for which he was refused at the time. …the remarks once proposed by Mr Bukalov have not been taken into account... The only thing that has been taken into account is the exclusion of this provision: “Petitions….
ALL OTHER PROPOSALS BY HUMAN RIGHTS ACTIVISTS, including those of Mr Bukalov, HAVE NOT FOUND REFLECTION.’
In other words, in Vadym’s opinion, Bukalov himself proposed good changes, but as soon as he became a civil servant, he ignored all his own proposals. He persistently and energetically demonstrates this perception of the new Regulation at every opportunity.
When asked to list which proposals were NOT TAKEN INTO ACCOUNT, given that the only one he acknowledged had already been mentioned, Mr Vadym replied:
VC: ‘Practically nothing has been taken into account from that regulation (proposed by DM in 2013 – Auth.) (this statement by Vadym is quite important and even key to the analysis). The exception is only the exclusion of the point I mentioned above. In essence, it is the exact same document as before!!! They simply excluded this point from the current regulation, as well as the issue regarding the regulation of the Commission’s composition. It is far from what was proposed by Donetsk Memorial. I am not even mentioning the remarks that I and my colleagues wrote. If necessary, make a comparative table of what you proposed on your website and what has been adopted. Everything will become clear.’
Instead, he later compiled the table himself. Although, before doing so, he decided to note:
VC: ‘Let me perform an objective legal analysis (along with the table), publish it, and then we will discuss it and try to improve the Regulation together.’
In his analysis, he cites a completely different ratio of adopted and ignored DM proposals:
VC: ‘11 proposals of Donetsk Memorial were ignored, and only 7 proposals were adopted. Also, 4 negative changes from the perspective of human rights were added (not counting those stemming from the Criminal Code of Ukraine), and 2 positive ones.’
One can be grateful to him for the comparison he performed, as it is not often in such discussions that someone is able to argue their point of view so thoroughly. The condition—first publish, then discuss—is slightly strange, but it fits into Vadym’s promotion of the aforementioned perception of changes to the Regulation. It is interesting that Vadym himself called his analysis ‘objective’ (http://www.khpg.org.ua/index.php?id=1430478161).
I hope that my colleagues will find my—naturally, purely subjective—vision of the results of the Regulation’s update interesting.
First, a couple of terminological remarks. Throughout Vadym’s analysis, ‘proposals of Donetsk Memorial’ are mentioned over a dozen times. In reality, DM was the initiator of the preparation and the submitter of a number of proposals, but the changes themselves are the result of discussions among colleagues. This is a joint product. And although Vadym speaks about this in the discussion, I would like to emphasise it.
And a second remark. When two quite different parties seek a joint solution, a joint text, it is quite natural that they exchange arguments. It sometimes happens that one party agrees that the other party’s proposal is sound and makes a choice in favour of such a sound proposal. Defending one’s positions at any cost just because they are one’s own is not always a sign of principle and consistency.
Now for the proposals themselves. I counted the mention of 24 proposals in the analysis text. I divided them into 5 groups.
The first—those that are truly (in my opinion) useful (which is not synonymous with ‘current’), but were not taken into account.
The second—proposals not taken into account, but to the exclusion of which I do not object at present.
The third—proposals not taken into account because that is what the law dictates.
The fourth—conventionally called ‘fake’ proposals, because the proposed norms already exist.
The fifth—proposals actually taken into account in the updated Regulation.
* I will start with the third group. Vadym believes that
‘the removal from the Regulation text of the norm regarding “the possibility for the President of Ukraine to commute a sentence or its unserved portion with a more lenient one” does not correspond to the proposals of Donetsk Memorial.’
That is to say, such an innovation is a failure to take into account the DM position. But that is what the law stipulates, and the will of the Regulation’s developers, including the head of the pardons department, has nothing to do with it (see the Law of Ukraine ‘On Amending the Law of Ukraine “On the Application of Amnesty in Ukraine” and other legislative acts of Ukraine’ of 2 June 2011).
* Vadym also considers it a negative that
‘an additional condition is introduced for the application of pardons to those convicted of corruption crimes—they can be released only after they have actually served the term after which parole is possible for them. That is to say, the possibility of a pardon arises only when it is of no significant importance, since the person could already be released through parole.’
But even here, the norms of the Regulation only repeat the law. It is unlikely that Vadym believes a norm of the Regulation can ‘override’ a norm of the Law. But if so, why does he call it a ‘failure to take into account DM proposals’ in his analysis in these two instances?
* The next ‘ignored’ proposals I call ‘fake’ (fourth group).
This refers to the failure to account for the mention of submitting a medical certificate:
‘The proposal of Donetsk Memorial that the administration of the penal institution shall also send a medical certificate of the person’s health status has not been taken into account.’
However, such a certificate is a mandatory element of the set of documents submitted by the colony; this is provided for in the Ministry of Justice’s instructions. I did not know about this when I drew up the proposals. Therefore, including such a norm in a situation where the certificate is already provided for is redundant. In fact, the DM proposal has already been taken into account. Vadym persistently considers this a failure to take into account the DM proposal.
* Furthermore.
‘The proposal of Donetsk Memorial to formulate the norm as follows: “The Department shall report to the Commission on circumstances that may impede the satisfaction of the petition” has not been taken into account.’
In reality, the norm now looks like this:
The Department reports to the Commission on petitions that are not subject to satisfaction due to circumstances provided for by this Regulation.
What exactly has not been taken into account and how it harms the procedure is unclear. In any case, the Department does not make the decision but reports to the Commission for the Commission to make the decision. So, what has not been taken into account here?
* In addition, Vadym’s analysis notes:
‘From the new Regulation, a positive norm was excluded stating that a repeat petition received before the expiration of these periods is returned to the applicant with the appropriate explanation. This is the cancellation of an additional guarantee for receiving a motivated decision for the purpose of its proper appeal.’
Vadym likely does not know that the procedure for responding to such a repeat petition is exactly as stated in the proposal. The Pardons Department cannot act otherwise than to explain the possible procedure for submitting a repeat petition. And that is what it does. It is not necessary to specify this in the Regulation. The lack of fixation of the norm in the Regulation does not worsen the situation and does not affect the decision regarding a pardon. Therefore, this ‘proposal’ is also de facto taken into account. To consider it ignored is only possible by abstracting very far from reality.
The next group of proposals are those to whose exclusion I did not object (second group).
* The analysis claims:
‘The proposal of Donetsk Memorial that sincere remorse should not be taken into account when considering a pardon petition has not been taken into account. In the opinion of DM, such a circumstance “may be reflected in the character reference” and therefore should not be taken into account.’
In my opinion, the preservation of this condition does not harm the consideration of the petition and its positive resolution, and often it can be an additional argument for a pardon. Especially since the proposal from two years ago states that information about sincere remorse can be in the character reference; that is, even if the proposal were taken into account, this circumstance would still have to be in view when considering the petition. On the contrary, the absence of information about remorse narrows the possibilities for arguing the appropriateness of a pardon. In practice, the absence of remorse has never been a basis for refusing a pardon. However, for Vadym, it is for some reason super important that the Regulation does not mention remorse, even if it worsens the possibilities of pardoning convicts.
* Next.
‘The proposal of Donetsk Memorial that it should not be the person of the convict that is taken into account, but the degree of public danger of the person, has not been taken into account. These terms have a significant difference.’
The difference between these concepts, while real, does not affect the decision-making on the application of a pardon to any noticeable extent. Regarding Vadym’s opinion that ‘an indication of the person’s public danger could have become an impetus for a broad discussion on the development and implementation of a professional criminological risk assessment,’ I do not believe that such an impetus should be provided precisely through the inclusion of special formulations in the Regulation. It is better to ‘nudge’ a broad discussion through other actions.
* The analysis states:
‘The requirement of “extraordinary circumstances” and an “exceptional case” for the application of a pardon now also applies to persons who have served an insignificant portion of their sentence.’
This norm is aimed at ensuring that if a person has served an insignificant portion of their sentence, they are not refused a pardon because of this—certain special (extraordinary) circumstances can be taken into account, due to which the person should be pardoned even in such a case (when serving an ‘insignificant portion of the sentence’). If someone associates the term ‘extraordinary’ exclusively with earthquakes and tsunamis, then nothing can be done about such associations.
* Further, Vadym notes:
‘True, no definition of an “insignificant portion” of the sentence is provided, and therefore it will completely relate to the discretionary powers of the body that makes the decision on pardons.’
Yes. And this term appeared in contrast to the previous version, when there was a condition of serving at least half of the sentence term. Now, a pardon petition can be favourably considered even in the case where the person has not served half the sentence term. One has to strain hard to see a negative in this term, although Vadym does so, without even considering that the European Convention on Human Rights has a term about considering cases ‘within a reasonable time’. So, there may be reasonable people at the European Court, but in the Pardons Department, Vadym likely thinks there are not…..
* Next.
‘Vadym believes that “The proposal of Donetsk Memorial regarding clause 13 of the former regulation has not been taken into account. Namely, the proposal to exclude the norm that ‘the Commission reports to the President of Ukraine on petitions for which grounds for satisfaction have not been found’ was not taken into account.”’
This norm is not excluded because it is a necessary element of the procedure for considering pardon petitions; it can be removed, but the specified actions must still be carried out. Therefore, the removal of this norm is not justified, expedient, or such that it affects the decision on the application of a pardon.
* ‘The proposal of Donetsk Memorial, which could have become a significant guarantee of legitimacy and the right to proper appeal in case of refusal to satisfy a petition, has not been taken into account. Namely, the convicted person and the persons who petitioned for a pardon should have been notified of the rejection of the petition and its motives no later than a month after the relevant decision was made.’
The convicted person is always notified of the rejection of a petition, and not within a month, but in a significantly shorter period. The proposed norm would only provide an opportunity to make it ‘legal’ to delay responses. Therefore, considering this a failure to take into account the DM proposal is a great stretch. As for indicating the motives for rejecting the petition—they should also be indicated. This is a normal standard. Perhaps, previously, it happened that they were not indicated. But even in that case, one can obtain the motives for refusal through a request.
Vadym’s confidence that the refusal to satisfy a petition (in fact, a refusal of the President’s mercy regarding a certain person) can become a subject of judicial appeal seems surprisingly strange. Although, in reality, one can appeal the President’s decision in court…. But what is there to appeal? There is no duty for the President to pardon. There is only a right. One can argue with this, but it would no longer be a professional conversation, but a competition in absurdity. Perhaps I do not understand something in life, but the formal-logical construction that provides for an appeal in court against a refusal of mercy makes one wonder—does the constructor care about pardons at all?
* ‘The proposal of Donetsk Memorial that Commission meetings be convened at least once every two months has not been taken into account.’
The presence or absence of this norm cannot in any way influence the frequency of meetings in practice. The less frequently they occur, the more difficult it is for the Pardons Department to work; its employees themselves are interested in maintaining a reasonable frequency of meetings. If meetings do not take place due to the President’s actions, then there are no mechanisms to force him to change such an approach. This is not very good. But I have great doubts about the possibility of really influencing the President’s position in this case through a document norm.
Perhaps, during the next amendments to the Regulation, this norm should be included. However, today, its absence is not a noticeable factor influencing the Department’s work results.
* ‘The proposal of Donetsk Memorial that the positions of the local executive body and local self-government body should be excluded from the bodies whose opinions are taken into account during the consideration of pardon petitions has not been taken into account.’
In reality, taking into account the opinion of a local executive body or local self-government body happens rarely. It is not specially requested in every case as a mandatory procedure. Usually, it can be useful when it is desirable to point out arguments in favour of a pardon. Its removal would slightly (insignificantly) narrow the ability of petitioners to provide arguments in favour of their pardon. There is no harm to the positive resolution of the pardon issue from preserving the norm, and there can sometimes be a benefit. And therefore, not taking into account the two-year-old proposal is not a negative, as, unfortunately, Vadym believes.
* ‘The proposal of Donetsk Memorial regarding the possibility for those sentenced to imprisonment for a certain term to re-apply with a petition in half a year, and not a year, has not been taken into account.’
Regarding re-applying after half a year. I agreed with my colleagues in the Department that currently (2015), the norm regarding a one-year period for a repeat petition is optimal. It should be taken into account that if any significant grounds arise for a convict 2–3 months after a refusal of a pardon, the norms of the Regulation allow the petition to be considered and to propose to the President to satisfy it.
Thus, 14 out of 24 proposals to the Regulation are either already taken into account or do not have any significant impact on the result of considering a pardon petition.
And what has been taken into account in the Regulation text from the DM proposals?
* As DM proposed, the following norm was removed:
Petitions for pardons of convicts who have not embarked on the path of correction or have not served half of their assigned sentence term, as well as petitions of persons convicted of grave or especially grave crimes, can be satisfied only if there are circumstances requiring an especially humane attitude.
By the way, this is the only thing Vadym initially noticed. But here is what he did not notice immediately, but perceived later:
* the humanisation aspect of the new norm: the condition of an exceptional case and extraordinary circumstances is not required for convicts to whom amnesty, parole, and commutation of a sentence to a more lenient one were previously applied;
* It should be noted that a very important positive change from a practical point of view: ‘A convicted person may attach other documents to a personal pardon petition which, in their opinion, are of significance for the application of a pardon.’
It is worth positively evaluating the changes that took into account the proposals of Donetsk Memorial and excluded from the list of circumstances that must be taken into account when deciding on a pardon the following:
* the person’s attitude to work. This is a logical bringing of the Regulation into compliance with the latest amendments to the Criminal Executive Code of Ukraine, where it was recently further clarified that work is a right, not a duty of the convict.
* active assistance in solving the crime;
* the opinion of labour collectives.
* The proposals of Donetsk Memorial regarding the democratisation of the Commission’s composition in pardoning matters have been taken into account.
* Clause 14 defines the period after which a repeat pardon petition is permissible. In the new norm, the restriction for those sentenced to life imprisonment is removed—previously it was 5 years, and now it is 1 year. This deserves a positive evaluation.
These eight taken-into-account proposals, together with the previous 13, make up 21 proposals in total.
The proposals presented by DM that are truly significant, but have not been taken into account, and this failure to account for them affects the procedure for submitting petitions (and not the results of consideration, which is very important).
* ‘The proposal of Donetsk Memorial that the parents of the convicted person, the spouse, children, legal representative, the Human Rights Commissioner, and public associations should also have the right to petition for a pardon has not been taken into account.’
The proposal is sound but requires defining a procedure that would ensure the collection of documents necessary to resolve the pardon issue, a significant portion of which is usually prepared by the colony. Perhaps this norm will be taken into account when introducing the next amendments to the Regulation.
* One should sharply negatively evaluate the lack of acceptance of the Donetsk Memorial proposal that generalised information on the results of the Commission’s activities should be periodically (at least once every six months) made public.
This proposal should also have been taken into account. Instead, the practice of periodically making information about the Commission’s activities public existed, and the department will resume it regardless of the presence or absence of the norm in the Regulation. Perhaps this norm will be possible to take into account when introducing the next amendments to the Regulation.
What are the results?
On one hand, for me (subjectively)—eight taken-into-account DM proposals and positive changes, among which are significant ones (such as the Commission’s composition, the possibility for a convict to add other documents to the petition, the possibility for life-sentenced prisoners to re-petition a year after a rejection, and not after five years, as it was, or even not after three years, as Vadym himself proposed) and another 14 are either taken into account or do not affect the results of considering petitions. On the other hand—two really significant proposals that have not been taken into account.
Vadym’s conclusion:
To my great regret, the expected comprehensive perception of public proposals did not happen. Many important proposals and remarks of the public, in particular, of Donetsk Memorial, were left without attention. In addition, some additional negative norms from the point of view of humanisation appeared in the new Regulation.
Vadym Chovhan initially titled his analysis as follows:
New Regulation on the Procedure for Exercising Pardons: The public (almost) unheard.
And before compiling the table, he generally noted: Practically nothing taken into account.
In combination with his first reaction (The only thing taken into account was the exclusion of one provision: "Petitions... ALL OTHER PROPOSALS OF HUMAN RIGHTS ACTIVISTS, including Mr Bukalov, HAVE NOT FOUND REFLECTION)—this objective position of his raises only one question for me:
why?
After a personal meeting and conversation with him, I think I understood why. The point is not only that the author of the objective analysis seems to count ignored proposals in a very original way, which is partly connected to a specific understanding of the essence of the pardon institution (something like parole by the President’s will). In such an understanding, he is not alone. And it is not only that in the analysis, proposals that were actually taken into account are considered ‘ignored,’ and also one feels an irrepressible desire to regulate the smallest trifles in the work of the Pardons Department (such an approach is characteristic of the penitentiary service of the past), combined with almost complete indifference to the truly important moments of the document. The point, most likely, is in something else entirely, if a literate person went for such—in my opinion—very biased and unprofessional evaluation of the document. And that is quite sad.