Journal article Open Access
The article examines the problems of legal regulation of sentencing in the form of life imprisonment and its compliance with international standards of human rights protection. The author draws attention to the Ukrainian system of life imprisonment review and the challenges that national courts face in resolving this issue. The author describes the main shortcomings of the Ukrainian legislation on the review procedure in conjunction with a situation in other countries.
The state must enshrine safeguards to ensure that a person can expect a review of the punishment in the case of substantial changes in the conduct and attitude to the crime in which he or she is convicted (appropriate behavior, psychological changes in relation to the crime).
ECtHR highlights in this category of cases that the main purpose of punishment is not the punishment itself, but possible further rehabilitation of a convicted person with the prospect of return to society. On March 2019, the ECtHR reached the conclusion in the case “Petukhov v. Ukraine (№2)” that the Ukrainian national legislation is inconsistent with the provisions of the Convention.
In a situation of life imprisonment without parole and lack of legal certainty in the administrative pardon procedure, which is prescribed by the Ukrainian legislation, the Court concluded that the purpose of rehabilitation cannot be gained, since the further behavior of the convicted person is not important for the legislator. It’ll rather pay attention to the accidental coincidence which, in exceptional cases, would allow the release of a person sentenced to life imprisonment.
A large number of persons sentenced to life imprisonment have initiated the revision of their sentence in order to mitigate it, but the practice of the courts is negative, therefore, all the applicants are refused in granting such requests.
Factually, Ukraine is following the example of the United Kingdom and Turkey, refusing to comply with ECtHR decisions and, accordingly, amending its legislation.
The decisions of some national courts have argued that the current model of life imprisonment in the form of a pardon is in full compliance with the Convention. In doing so, all courts approving this position, cited Petukhov's case, which the ECtHR found directly in violation of Article 3 of the Convention because of the nonconformity of President's pardon procedure with penological remedies of prisoner’s rehabilitation.
The legal pardon procedure in Ukraine should be attributed to practically irreducible life imprisonment without parole. Although it provides a certain procedure for regulating the presidential pardon and even sets the time limits for reviewing pardon applications, but in reality it is practically not implemented.
The absence of any requirements to motivating of the decisions of the Pardon Commission and the possibility of judicial review testify the impossibility of appealing it and create additional obstacles in the minimal exercise of the right of convicts to hope.
These legislative gaps require amendments to the Ukrainian legislation with the aim to create a transparent sentence review mechanism that will ensure respect for human rights.