The Committee of Ministers of the Council of Europe (CMCE) has expressed strong reservations about the life sentence review mechanism recently introduced by the Ukrainian authorities. In doing so, it echoed some of the criticisms made by EPLN, the Kharkiv Human Rights Protection Group, the Ukrainian Helsinki Human Rights Union and the NGO Protection for Prisoners of Ukraine in their joint submission.
The mechanism was created by a law passed in November 2022 to implement the ECtHR judgment Petukhov v. Ukraine (no. 2), which found the life sentence system in Ukraine to be in violation of the ECHR. Until recently, in Ukraine, lifers could only be released if they had a serious illness preventing their further imprisonment or if they were granted presidential clemency, which makes their sentence irreducible by CoE standards. The Court considered this problem to be of “systemic” nature, and “calling for the implementation of measures of a general character” (para. 194).
Under the new mechanism, lifers can have their sentence commuted to a fixed term imprisonment (15 to 20 years) after serving a minimum of 15 years (from the date of entry into force of the law), and can be released on parole after serving three quarters of the commuted sentence.
The law has been strongly criticised by civil society organisations, who have pointed out a series of inconsistencies with CoE standards. These criticisms were developed by EPLN and its partners in their joint submission.
First of all, the organisations criticised the extreme severity of the system in place. They stressed that in the best-case scenario, prisoners would be eligible for parole after serving 26 years and 3 months (provided that they obtain commutation of their sentence immediately after serving 15 years, and that their life sentence is replaced by the shortest possible sentence under the framework, i.e. 15 years).
This prospect of release can hardly be considered realistic, as it is likely that the majority of prisoners concerned will not live long enough to be effectively released, given the strict security regime imposed on prisoners serving a life sentence, the generally poor conditions of detention, and the lack of access to medical care in Ukrainian prisons.
Secondly, EPLN and its partners observed that prisoners seeking commutation of their sentences face a double hurdle. On the one hand, they are required to prepare a reintegration plan while being subjected to an extremely harsh and destructive detention regime (total isolation from other prisoners, interdiction to communicate with other prisoners other than their cellmates, lack of meaningful activities). In addition, they receive no assistance in finding employment, training or accommodation in the community.
On the other, their application will be examined on the basis of unclear criteria that leave a very wide discretionary power to the judge.
The CMCE will consider the case at a later session in the light of the new information requested on specific points. In particular, in its decision, the Committee:
- Requested the Ukrainian authorities to “provide information on the functioning of the [life sentence] review mechanism in due course, in particular details of administrative and court practice”, including on the “grounds and criteria” used;
- Requested the Ukrainian authorities to provide information on “how the obligation for prisoners to prepare and submit reintegration plans […] works in practice”;
- Recalled “the positive obligation to secure prison regimes for life prisoners which are compatible with the aim of rehabilitation”;
- Invited the Ukrainian authorities “to submit additional information about possibilities of life prisoners to communicate with one another during permitted group activities” and encouraged them “to take all necessary steps to introduce measures ensuring possibilities for life prisoners to communicate during out-of-cell activities”.