Will the Law on Wilful Disobedience by Convicts Be Repealed? Analysing the Bill

What is Proposed

Bill No. 15003 ‘On Amending the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and the Criminal Executive Code of Ukraine on the Humanisation of Legislation in the Field of Execution of Criminal Sentences’ is designed to align Ukrainian criminal legislation with European standards, implement the recommendations of the European Committee for the Prevention of Torture, and achieve what Ukrainian human rights defenders have long campaigned for – the removal of Article 391 on ‘wilful disobedience to the lawful demands of the administration of a correctional facility’ from the Criminal Code of Ukraine.

Typically, the infamous Article 391 was applied in practice as follows: for refusing to clean a cell, having an unmade bed, an unshaven face, or objecting to a personal search, a prisoner could be placed in a solitary cell or transferred to a stricter regime of sentence execution, and subsequently receive an additional sentence of up to three years’ imprisonment. Even ‘tactless behaviour’ could cost a person a year of imprisonment. Moreover, the trial usually took place directly on the premises of the correctional facility, and appealing against the verdict was virtually impossible.

Article 391 of the Criminal Code of Ukraine contains a number of contradictions and inconsistencies, the authors of the bill note: ‘The concepts of “wilful disobedience” and “other obstruction of the administration in the lawful exercise of its functions” currently lack clear criteria, which in practice sometimes leads to a subjective assessment by the administration of the correctional facility and creates risks of abuse and actual pressure on convicts. The current wording of Article 391 of the Criminal Code of Ukraine cannot in practice be applied to individuals serving sentences in the form of restriction of liberty, since under the Criminal Executive Code of Ukraine, the disciplinary penalty of transfer to cell-type premises (a solitary cell) is not applied to these persons. Furthermore, Article 391 of the Criminal Code of Ukraine effectively establishes criminal liability for committing disciplinary offences.’

As summarised by the Ministry of Justice, the bill provides for:

• improving the system of disciplinary penalties within the framework of criminal executive legislation;
• legislatively defining the signs of wilful disobedience to the lawful demands of the administration;
• strengthening the role of the court in the application of the most severe measures of influence;
• abandoning solitary confinement as a disciplinary penalty in accordance with Council of Europe standards and the Nelson Mandela Rules;
• aligning the terminology of the Criminal Executive Code with the Law of Ukraine ‘On Electronic Communications’, as well as clarifying procedures related to the execution of court decisions.

Thus, it is recommended to repeal Article 391 of the Criminal Code of Ukraine. It is also proposed to abolish the disciplinary penalty of transferring convicts to a solitary cell, and instead transfer prisoners to cell-type premises. A definition of the term ‘wilful disobedience to the lawful demands of the administration of a correctional colony’ is added to Article 133 of the Criminal Executive Code of Ukraine: it is ‘the intentional, open, demonstrative, and systematic (at least three times within a year) refusal of a person serving a sentence of imprisonment to comply with the lawful demands of a representative of the correctional colony administration, as provided for by criminal executive legislation, for which they were subjected to a penalty in the form of placement in cell-type premises within the year.’

Human Rights Defenders Have Long Awaited This

‘The government’s initiation of Bill No. 15003 is, without exaggeration, a landmark event for the entire system of execution of sentences,’ says human rights defender Andriy Didenko. ‘For years, Article 391 of the Criminal Code of Ukraine remained one of the most repressive tools in penitentiary practice. The KHPG has for a long time insisted on the unconditional repeal of this shameful provision, a remnant of the Soviet repressive and punitive system. Article 391 effectively allows the term of imprisonment to be extended for disciplinary offences. First, a person was held disciplinarily liable, and subsequently, the very same circumstances became the grounds for criminal prosecution. This model of disciplinary prejudice contradicts the basic principles of criminal law – proportionality, legal certainty, and the use of criminal law as a last resort. In practice, we see sentences of up to three years’ imprisonment for refusing to comply with administrative orders, or for formal regime violations that pose no public danger but lead to additional years of imprisonment on top of the original sentence.’

But...

At the same time, the bill contains provisions that require special attention, the expert notes: in parallel with the abolition of criminal liability, it is planned to strengthen disciplinary mechanisms, including the possibility of holding convicts in cell-type premises for up to one year. This is a significant increase in isolation-based penalties.

‘Such a provision is a cause for concern. Prolonged confinement in cell-type premises is a harsh measure that can have serious psychological and physical consequences. International standards, particularly the Nelson Mandela Rules, consider prolonged isolation for more than 15 days as potentially cruel or degrading treatment. Therefore, a year spent under conditions of cell-type isolation without proper procedural guarantees could pose a risk of violating Article 3 of the European Convention on Human Rights. There is a danger that, in the absence of clear control criteria, the criminal mechanism will simply be replaced by an administrative-isolation one, and the system’s punitive logic will persist in another form. If the decision on prolonged confinement in cell-type premises remains effectively in the hands of the administration, without any effective option for immediate and informal appeal, the reform risks being half-hearted.’

Therefore, alongside the repeal of Article 391, human rights defenders propose ensuring a transparent procedure for disciplinary proceedings, mandatory genuine rather than formal judicial control over prolonged isolation measures, access to a lawyer, regular medical monitoring, and real mechanisms of appeal.

‘Abolishing criminal liability for disciplinary offences is a correct and long-awaited step. But the true humanisation of the system will only occur when disciplinary measures stop being used as tools of pressure, and human rights remain guaranteed even behind bars.’