On Article 391 of the Criminal Code of Ukraine: Arguments and a Proposal

Currently, there is an active discussion regarding amendments to the Criminal Code of Ukraine, which propose to repeal Article 391 of the Criminal Code of Ukraine (hereinafter – Article 391). This article provides for criminal punishment for ‘wilful disobedience to the lawful demands of the administration of a correctional institution or other obstruction of the administration in the lawful exercise of its functions by a person serving a sentence of restriction of liberty or deprivation of liberty’. The law currently provides that if a convicted person, ‘for violating the requirements of the sentence execution regime, was subjected during the year to a disciplinary penalty in the form of transfer to cell-type premises (a solitary cell) or was transferred to a stricter regime of sentence execution’ – this person may be punished by imprisonment for a term of up to three years.
A significant feature of Article 391 is that it imposes a criminal penalty for a series of disciplinary (non-criminal) offences.
Proponents of repealing Article 391 – who are largely civic activists, representatives of human rights organisations, academics, and convicts – most frequently put forward the following arguments in favour of repealing the article:
* The article provides for a criminal penalty for actions, none of which constitute a criminal offence, but are rather of a disciplinary nature. Apart from Belarus, there are no known countries where a similar punitive practice is applied.
* Even without Article 391, the legislation contains sufficient mechanisms to hold convicts criminally liable if they commit new crimes while serving their sentences.
* The European Committee for the Prevention of Torture has repeatedly recommended that Ukraine repeal Article 391, but these recommendations have still not been implemented.
* Almost any convict – the total number of whom is estimated at nearly 50,000 – could fall victim to the application of this article.
* This article is highly prone to corruption: prison staff often demand bribes from convicts under the threat of applying Article 391 and ‘tacking on’ an additional sentence.
Their opponents, the proponents of retaining Article 391 in the Code, are mostly employees of the State Criminal Executive Service (hereinafter – SCES) and certain law enforcement agencies. In contrast, they insist that this provision is desperately needed to maintain law and order in correctional colonies, and that its repeal would supposedly lead to their destabilisation. They claim that the absence of Article 391 would deprive institutional administrations of a mechanism of influence over wilful offenders of the law, presenting this circumstance as if the legislation contains no other mechanisms of influence on defiant convicts.
The interaction between the representatives of both sides (which can hardly be called a dialogue) is characterised by each side primarily defending its own position. While civic activists do try to listen to their opponents’ arguments and put forward their own counterarguments and vision on contentious points, the opposing side completely ignores any arguments from their adversaries and fails to present coherent arguments on the disputed issues. One gets the impression that they are absolutely deaf to their opponents and have no desire to hear them, so they see no need to offer any counterarguments.
When the sides communicate, emotions often run high and the matter rarely reaches the stage of proper rational discussion. In its own way, this is understandable: if one has nothing to say, it is enough to turn the communication into shouting, rendering the conversation pointless. Yet discussing the issue of repealing a legislative provision is both important and necessary. While the arguments of the proponents of repealing Article 391 are easily comprehended, the arguments of their opponents are difficult to understand. Nevertheless, hearing them and assessing their motivation is highly useful and interesting, if only to gauge the level of seriousness and validity of their claims.
To this end, a series of inquiries was sent to various state bodies, primarily to law enforcement agencies.
Strangely enough, it turned out that not all law enforcement agencies object to the repeal of Article 391. Their positions are as follows:
The Ministry of Internal Affairs believes that ‘resolving the issue of decriminalising Article 391 of the Criminal Code of Ukraine, like any other provision, requires a more detailed study involving specialists from all interested state bodies and representatives of the Supreme Court of Ukraine, regarding the efficiency and validity of its practical application, taking into account the analysis of judicial practice in the consideration of criminal proceedings of the specified category of crimes’.
Notably, the Ministry of Internal Affairs currently has no clear and unambiguous arguments against the repeal of Article 391.
The Security Service of Ukraine (SBU) replied that ‘the issue raised does not fall within the competence of the Security Service of Ukraine’.
There were also no outright objections to the repeal of Article 391 from MPs. For instance, the head of the ‘People’s Front’ parliamentary faction in the Verkhovna Rada of Ukraine, MP M. Burbak, noted that ‘in the event that the corresponding bill is submitted for consideration, the decision on the results of its consideration will be taken at a meeting of the parliamentary faction in accordance with the established procedure’. That is to say, at that moment, he and his fellow MPs were neither FOR nor AGAINST; they would make their decision only when the time came.
The Commissioner for Human Rights stated that she supported the repeal of Article 391, but cited only the existence of the recommendation of the European Committee for the Prevention of Torture (hereinafter – CPT) as her argument. Any other issues, such as significant human rights violations in the application of Article 391 or staff bribery, were ignored by the Commissioner, apparently seeing no need to react to them.
The most interesting responses were provided by two institutions – the Prosecutor General’s Office of Ukraine and the State Criminal Executive Service.
The response of the Prosecutor General’s Office emphasises (a virtually complete quotation, which is important) that ‘the study of the provisions of the bill and its explanatory note showed that the exclusion of Article 391 from the Criminal Code of Ukraine will lead to the complete decriminalisation of actions consisting of wilful disobedience to the demands of the administration of a correctional institution, which will contribute to the destabilisation of law and order in correctional colonies through non-compliance with the conditions of the execution and serving of sentences by convicts’.
If one sets aside logic and common sense, the response seems reasonable enough. Yet the phrasing of this formulation is highly telling, and it is hard to refrain from asking: which legal norms did the specialists who studied the provisions of the bill use? Which international documents were considered in the process? With which experience – domestic or international – was the comparison made? Why is the decriminalisation of actions of ‘wilful disobedience’ unacceptable, given that the concept of what constitutes this wilful disobedience is not clearly defined in the law and remains quite vague? The PGO’s response says absolutely nothing about the professional standard of this ‘study’.
In order to try to unravel this verbal puzzle and comprehend the arguments, a second inquiry was sent to the agency, containing several clarifying questions. Noting the unconvincing nature of the response provided, the agency was asked, in view of the assertion regarding the possibility of the ‘complete decriminalisation of actions consisting of wilful disobedience to the demands of the administration of a correctional institution’, to provide (clarify) the following:
- For which specific criminal acts does Article 391 of the Criminal Code of Ukraine exclusively establish liability, such that criminal liability is not provided for by any other articles of the Criminal Code of Ukraine?
- How should Ukraine respond to the CPT’s recommendations to repeal Article 391 of the Criminal Code of Ukraine?
- Can examples be provided where, after Article 391 was applied to a convict, law and order in the institution improved? In what way was this expressed?
The PGO’s reply to these additional questions was succinct:
‘We inform you that the provisions of the Basic Law of Ukraine do not authorise prosecution bodies to provide clarifications, prove positions, or convince citizens of them.’
Thus, the public's attempts to obtain explanations from the Prosecutor General’s Office met with stiff resistance, which illustrates the level of readiness of this agency (a law enforcement structure) for dialogue and the search for constructive solutions. For anyone who respects the law and honours the Constitution, it is difficult to consider the PGO’s first response (or indeed the second) as ‘reasoned’ within the meaning of Article 40 of the Constitution of Ukraine.
It is quite obvious that the Prosecutor General’s Office has nothing reasonable to say in response to simple clarifying questions, and that simply no one conducted even a slightly attentive and serious ‘study’ of the bill. At least, the PGO provided no evidence to the contrary and flatly refused to do so. To paraphrase slightly a quote from a character in the film ‘Chasing Two Hares’, one very clearly senses that in the prosecution’s view, the PGO is ‘one thing’ and a non-governmental organisation is ‘another thing entirely’. Thus, the PGO has no actually reasoned and comprehensible arguments for retaining Article 391.
The Prosecutor General’s Office’s confidence that repealing the article ‘will contribute to the destabilisation of law and order in correctional colonies through non-compliance with the conditions of the execution and serving of sentences by convicts’ is nothing more than a verbal construct, unsupported by facts or the practice of institutions. And everyone who repeats this mantra without evidence, including MPs, merely demonstrates that they have no factual proof of the dangers of repealing the article, and that there is no real substance behind their arguments in favour of retaining Article 391.
It is telling that the Prosecutor General’s Office avoided answering the question: for which specific criminal actions does Article 391 of the Criminal Code of Ukraine exclusively establish liability, such that no such liability is provided for by any other articles of the Criminal Code of Ukraine. It is hard to resist the conviction that if the agency had a substantive answer to this question, the specialists would have certainly provided it. If, however, the specialists limit themselves to verbal acrobatics (logical constructs) on this matter, then in fact these arguments do not exist.
The main state institution most concerned with retaining the article is the penitentiary service. The responses from the SCES leadership are no less interesting and telling. There are also two of them. In the first, the head of the service presents two mutually exclusive theses. On the one hand, he states that ‘the formulation of state policy in the area of the execution of criminal sentences does not fall within the competence of the SCES Administration’. This is despite the fact that no one asked the SCES Administration to ‘formulate policy’; there was merely a request to communicate the service's position regarding certain statements in the context of discussing the idea of repealing Article 391. In other words, the service's response is about something completely different from what was requested, which may indicate that the service simply has no clear position that can be made public.
Although immediately, in contradiction to the previous thesis, the SCES Administration claims to have submitted to the Ministry of Justice proposals and comments on the draft Law of Ukraine on the repeal of Article 391, thereby effectively contributing to the ‘formulation of policy’. The substance of these proposals and comments was not disclosed, although this was precisely what the inquiry requested.
In his second response, the head of the SCES recites at great length the provisions of laws and resolutions of the Cabinet of Ministers, but ultimately states: ‘in accordance with the provisions of the Order of the SCES Administration of Ukraine No. 261/OD-18 dated 6 September 2018, the requested information in the request for public information is not covered by the List of Public Information held by the SCES Administration of Ukraine’.
And yet, a detailed response was successfully obtained from the agency in response to an inquiry from ‘Donetsk Memorial’. This response seems quite sincere, setting out the genuine vision of SCES specialists on the issues of Article 391.
The list of the convict's actions that, in the opinion of the agency's specialists, fall under the definition of a crime punishable under Article 391 is very interesting. This list is pure gold.
It is highly important to analyse it, to look closer at the essence of these phrases, and to do so in the light of Article 11 of the Criminal Code of Ukraine:
1. A crime is a socially dangerous, guilty act (action or omission) provided for by this Code, committed by a subject of crime.
2. An action or omission which, although formally containing the elements of an act provided for by this Code, does not pose a social danger due to its insignificance, i.e., has not caused and could not cause substantial harm to a physical or legal person, society, or the state, is not a crime.
Therefore, it is worth re-reading the SCES’s arguments while keeping this legislative provision in mind, and trying to understand what constitutes the acts for which the agency deems it possible to apply Article 391.
The agency states:
‘Systematic violations of the established order of serving a sentence by a single convict acquire social danger in that, within the convict environment in which the offender is placed, disregard for the established requirements may subsequently escalate on a broader scale.’
It is also added that ‘the social danger of this crime lies in the fact that it obstructs the execution of the court verdict and the achievement of the purpose of punishment, and disrupts the normal activity of the bodies and institutions of the criminal executive service’.
Thus, a ‘guilty act’ – in the agency's understanding – is a (systematic) violation of the order of serving a sentence. Practice shows that alongside substantial violations, such actions can often include, for example, smoking in a forbidden place, an unmade bed, refusing to go out for morning exercises (especially outdoors in the rain in November), tactless behaviour towards a staff member (it goes without saying that any behaviour by a staff member is always understood as tactful), or even keeping one's hands in one's pockets during a walk on the institution's premises.
There are two important aspects to the SCES formulation cited above.
The first is that it does not contain any mention of the proviso contained in Article 11 § 2 of the Criminal Code of Ukraine, which is crucial here because it establishes that an action or omission which, although formally containing elements of any act provided for by this Code, does not pose a social danger due to its insignificance – i.e., has not caused and could not cause substantial harm to a physical or legal person, society, or the state – is not a crime.
This means that a significant, if not overwhelming, majority of the violations that form the basis for applying Article 391 are in fact insignificant, pose no social danger, and therefore, even if they formally contain elements of an act provided for by the Code, cannot be considered ‘guilty acts’. Consequently, the alleged ‘systematic’ nature of the violations, which relies merely on their frequency, becomes artificial.
And the second aspect is the assertion that the social danger of such violations lies in the fact that disregard for established requirements may escalate on a broader scale. In other words, the social danger of these acts is neither present nor imminent, nor is it significant; it only might escalate on a broader scale someday. Though it could also happen that it does not. Thus, a virtual threat (danger) serves as the basis and justification for a real (not virtual) punishment. And by no means a minor punishment, at that.
Equally remarkable is the additional clarification: that this act – violating the established order of serving a sentence – supposedly ‘obstructs the execution of the court verdict and the achievement of the purpose of punishment’. It is difficult to imagine how, say, failing to show up for morning exercises or failing to comply with the ‘Wake Up’ command can obstruct the execution of a court verdict, given that a court verdict usually refers exclusively to the term of imprisonment. Therefore, the verbal construct of ‘systematic violations of the established order of serving a sentence’ is used as the justification for what is deemed a ‘guilty act’. For an agency employee, this is typically enough to have grounds (a pretext) to threaten the convict with Article 391 and force them into obedience. We must emphasise: not to force them to rehabilitate or repent for the crime committed, for which they are serving the sentence – no, simply to force them to be obedient. There is no point even mentioning the educational effect of such an attitude towards convicts.
It is not unreasonable to assume that this is precisely why institution staff need Article 391 in the first place. Subsequent arguments from the agency only confirm this conclusion.
The following argument is highly illustrative and telling in this context:
‘By the administrations of correctional institutions, Article 391 is applied exclusively for the prevention of more serious crimes in places of deprivation of liberty, and the prevention of legal nihilism of both an individual convict and within the convict environment in general.’
Thus, the purpose of applying Article 391 is, first and foremost, not punishment for a specific ‘guilty act’ (Article 11 § 1 of the Criminal Code of Ukraine), but the prevention of more serious crimes and of legal nihilism.
In civil life, the attitude towards complying with the law can be characterised as nihilism in thousands of people. Unfortunately, this is a very common attitude among citizens towards the need to comply with legal norms. Yet it occurs to no one to imprison them for 2–3 years for this. I am sure there are convicts who could cite examples of legal nihilism among the staff of individual institutions. However, the law (Article 391) allows for criminal (!) punishment for legal nihilism only in the case of convicted persons, and precisely because of their social status as convicts. Other people with a different social status, including institution staff, are not subject to such punishment for their legal nihilism. One wonders how such an approach, such discrimination based on social status, squares with the requirement of Article 7 § 5 of the Criminal Executive Code of Ukraine, which prohibits discrimination on any grounds, including social status.
The following argument by the SCES highlights the motivation for applying Article 391 no less vividly:
The application of the article ‘allows staff to deter aggressively minded convicts from committing serious crimes’.
Once again, the agency admits that Article 391 is used not so much to punish specific ‘guilty acts’, but rather to ‘deter aggressively minded convicts from committing serious crimes’.
So, do the purposes for which the agency deems it appropriate to retain Article 391 correspond to the principles of law?
There is virtually nothing new in the following maxim from the SCES: ‘the main purpose of this article is not only educational influence and crime prevention among convicts, but also the fight against such negative manifestations as the spread of “thieves’ traditions and customs”, vigilante justice and reprisals by leaders and “authorities” of the criminal world, and the oppression of law-abiding convicts’.
There are many other articles in the Criminal Code that provide for punishment for various ‘guilty acts’. Following the agency’s logic, one could say the same about them:
punishment under Article 186 for robbery is intended for educational influence,
punishment under Article 152 for rape is intended for crime prevention among convicts,
punishment under Article 115 for intentional homicide is intended to combat the spread of ‘thieves’ traditions and customs’ and vigilante justice and reprisals by leaders and ‘authorities’ of the criminal world.
This example shows just how justified the agency’s arguments are regarding the purposes of applying this dubious provision.
Another aspect that motivates the SCES to defend the retention of Article 391:
‘The repeal of Article 391 deprives the institutional administration of significant levers of influence over the behaviour of convicts.’
In other words, the agency emphasises once again that it is primarily interested in ‘levers of influence’ – and therefore ways are devised to use the Criminal Code to construct virtual ‘systematic violations of the established order of serving a sentence’, in order to have ‘significant levers of influence over the convict’s behaviour’ under the threat of applying Article 391. The utilitarian interest of the agency overrides the principles of law. Do the heads and employees of the criminal executive system really not understand that by using Article 391 as a ‘significant factor of influence over the convict’s behaviour’, they are admitting to their own helplessness, their inability to influence convicts by other means? Such as, for example, communicating with convicts as equals rather than condescendingly, and not resorting to coercion and the humiliation of convicts' dignity at every turn. A significant portion of the staff does not know how to work this way, nor is it required of them. Very often, the current staff of institutions do not know how to exert educational influence any better than through threats of applying Article 391.
It is quite important to note that both the PGO and the SCES Administration ignore the very important issue of Ukraine's need to implement the CPT's recommendation to repeal Article 391. The Committee’s Reports for 2017 (paragraph 46) and 2018 (paragraph 103) emphasise that Ukraine has still not implemented the recommendation to repeal Article 391.
The Ukrainian authorities have provided no evidence of insurmountable circumstances that prevent them from implementing this recommendation. Despite reminders from an esteemed institution, the authorities simply ignore it completely. This is why, in any discussion, response, or event, representatives of the agency and other proponents of retaining Article 391 make absolutely no mention of this recommendation of the Committee or why it should not be implemented. They have nothing sensible to say in response, as in reality, the only obstacle to implementing the recommendation is a lack of political will, even though assurances of moving ‘towards Europe’ are constantly voiced from high platforms. A rather strange trajectory of this movement emerges in the case of Article 391.
The entire set of the agency's arguments for retaining Article 391 vividly highlights a very important, significant difference between the representation of life in institutions by service employees and the real situation in them. This difference lies in the following:
There are two, so to speak, planes of representing life behind bars, and these planes do not intersect, existing autonomously from one another.
One plane is the real life in colonies – with bribes, the humiliation of convicts' dignity, brutal treatment, inadequate punishments, unpaid labour of convicts, staff members smuggling mobile phones into the zone, and sometimes even beatings and torture of the defiant. Many corroborating facts are provided by human rights organisations, and this is frequently covered by certain media outlets. Naturally, this reality is known to the staff, the institutional leadership, and the agency's management alike. Yet they will never admit to it.
The second plane is the representation of life in colonies by quoting the provisions of the departmental Internal Regulations and the Criminal Executive Code. In other words, staff supposedly always act exactly as specified in the Regulations, while criminals resist them. In this representation of life behind bars, there is a rigid division between ‘us’ and ‘them’, and staff are usually depicted as unprotected from the insidious actions of criminals. The quintessence of such a perception is beautifully presented in a Facebook post by S. Starenko, the former head of the agency. He passionately assures that Article 391 is applied for
‘REPEATED GRAVE violations. As a rule, violators with more than 20 violations have a chance of being sentenced. Moreover, the convict can appeal each of the penalties for such violations separately in an administrative procedure. But they do not do so because these penalties are usually imposed correctly. Do you think the criminal world likes such a rule? Will they try to repeal perhaps the only restriction on their unlawful behaviour in colonies?
Now, criminals are trying to push this matter through (the repeal of Article 391). They are bending the ears of new MPs, talking about scare stories like corruption and lawlessness. There is no corruption there. There is the last opportunity to influence the mafia bosses and those in outright defiance.’
Like many employees of the agency, S. Starenko is convinced that ‘currently there is a lack of control and danger of staying in the institutions. The powerlessness of staff and the impunity of criminals. Currently, there is no effective liability of the convict for systematic non-compliance with the law. And there are no tools to force them to comply with the requirements of the law.’
In this version of institutional life, in his conviction, Article 391 is urgently needed. It is telling that he calls the representatives of those non-governmental organisations that support the repeal of Article 391 ‘pseudo-human rights defenders’.
It must be emphasised that the Criminal Executive Service provides no examples – indeed, it cannot provide any – of when the application of the article yielded any noticeable result. This is because there is a complete absence of any factual data or research findings that would support the romanticised theses and fantasies of this article's proponents. Therefore, most assertions about the possible terrible consequences of repealing Article 391 are fabricated; they are absolutely unsupported by anything. If convicts somewhere do hate prison staff, it is not because Article 391 is insufficiently applied to them. Furthermore, scientific or indeed any objective evidence of a positive impact of applying Article 391 is completely non-existent. There is no positive experience. Consequently, in the arguments of the proponents of retaining the article, examples of positive outcomes of its application are never mentioned.
Based on the clarification of the positions of various agencies regarding the repeal of Article 391, it can be stated: neither the SCES nor other structures possess reasoned arguments in favour of retaining Article 391.
If one imagines the arguments of both sides placed on the scales, on one side – in favour of repealing Article 391 – there will be:
- Depriving institutional administrations of a mechanism for demanding bribes and exercising unlawful pressure on convicts;
- Repealing criminal punishment for disciplinary offences;
- The need to improve legislation in accordance with European standards;
- The need to implement the recommendation of the European Committee for the Prevention of Torture to repeal Article 391;
- Introducing civilised procedures of treating convicts into the practice of the SCES;
- An effort to improve the country's image.
On the other side – in favour of retaining Article 391:
- Maintaining order and discipline in correctional institutions (although in reality this can be fully ensured by other means, without involving Article 391);
- An instrument of coercing convicts into complying with the requirements of the law;
- Prevention of more serious crimes in places of deprivation of liberty;
- The only opportunity to influence aggressively minded convicts;
- Prevention of legal nihilism both of an individual convict and within the convict environment in general;
- A lever of influence over the behaviour of convicts;
- Educational influence and crime prevention among convicts;
- Combating the spread of ‘thieves’ traditions and customs’.
In conclusion, the actual position of the proponents of retaining Article 391 in the Criminal Code is characterised by the following features:
- Readiness to apply criminal punishment for disciplinary violations;
- Bribery and arbitrariness of the administration in applying Article 391;
- Complete indifference to potential corruption risks associated with the application of Article 391;
- Lack of clear terminology (such as ‘wilful disobedience to the lawful demands of the administration’);
- Utilitarian use of criminal punishment in the interests of the agency;
- Absolute indifference to the CPT's position and its insistence on repealing Article 391;
- Absence of concrete facts regarding the effectiveness of applying this provision;
- Complete indifference to the potential damage to the country's image;
- Lack of substantive answers to specific questions posed by the proponents of repealing the article.
I must note that proponents of repealing the article often emphasise its susceptibility to corruption, speaking of staff bribery and the potential threat of applying the article to nearly any of the tens of thousands of convicts. These arguments are correct, but they mostly make it seem as if, were it not for bribery, repealing the article would not be so urgent. Or as if, if the application of the article threatened not thousands of prisoners, but only dozens (which, by the way, is indeed the case), then one could afford to insist on its repeal less vigorously.
However, I have somewhat different priorities in arguing the reasons for repealing this non-legal provision.
In my view, even if staff suddenly completely stopped demanding bribes for not applying this article, and even if it threatened only a handful of convicts rather than thousands, the urgency of its repeal would not diminish. The primary reason why it must be repealed is that it contradicts the principles of law; it is unlawful because criminal punishment cannot be applied for disciplinary violations. This article does not actually allow for the achievement of the purposes for which it supposedly exists. Its benefit to society exists only in the imagination of the staff and in the words of its supporters, and is absolutely absent in reality.
One can imagine how such a legislative provision would work if we followed the logic of its proponents and applied it to civil life. In that case, if a person were fined three times for crossing the street in an unauthorised place, then the fourth time they would have to be thrown behind bars. Or if a person were caught three times on a trolleybus without a ticket (‘a wilful lawbreaker’), then on the fourth time let them go to prison for a couple of years. Clearly, it is precisely the absence of legal logic in the existence of this article that makes it unacceptable under any circumstances – contrary to the rule of law, the sense of justice, and respect for human dignity.
The situation that has developed with the application of Article 391 is complex; the longer it remains unresolved, the more losses are sustained by the country and its citizens, particularly convicts and their relatives. The paths for resolving it through the adoption of a law repealing the provision in the near future are still unclear. A compromise solution today could be the application of the following algorithm of actions (subject to the goodwill of the authorities).
There is a tried-and-tested, civilised procedure of action in the case of contentious issues regarding certain legislative provisions: during the discussion of options for solving the problem, the application of the controversial provision is suspended – in other words, a moratorium on the application of the provision is effectively introduced. This has often been done by some countries, for example, during discussions on the potential abolition of the death penalty: despite the presence of the provision in the legislation, it was not applied for a certain period. And although formally the legislation did not prohibit the application of the punishment, the authorities demonstrated goodwill and a desire to reach an understanding and acted honourably: they did not apply a de facto active but controversial legislative provision.
Today, the authorities – first and foremost, the agency's leadership and staff – can introduce (de facto, not by a decision of some body, but simply by a change in practice) a moratorium on the application of Article 391. Say, for a year. During this year, judges should also refrain from handing down sentences under this article. Meanwhile, the various aspects of the expediency of its application can be discussed more professionally and thoroughly. The proposed sequence would actually correspond to the position of the Ministry of Internal Affairs:
‘resolving the issue of decriminalising Article 391 of the Criminal Code of Ukraine... requires a more detailed study involving specialists from all interested state bodies and representatives of the Supreme Court of Ukraine’. Admittedly, the public is not mentioned here, but that is of secondary importance.
Such actions by the authorities could demonstrate their responsible attitude towards the public's proposals and readiness to implement European standards for resolving complex issues, especially those of significant social importance.
It is sad to pursue the logic of this proposal, but it is logical to argue: a refusal of the proposed algorithm (a moratorium on the application of Article 391) will demonstrate that commitment to European standards for resolving socially significant problems in Ukraine still remains exclusively in the words of those in high offices. Our authorities have neither the political will nor the responsibility to apply such standards in practice. Such a position can also be considered a certain indicator of the authorities’ inability to treat their citizens in a civilised manner.