On Wednesday, October 11, 2023, the First Senate at the public part of the plenary session in the form of written proceedings deliberated the case upon the constitutional complaint of Anatolii Luzhynetsky regarding the constitutionality of Article 81.3.3 of the Criminal Code of Ukraine (hereinafter referred to as “the Code”).
During the plenary session, the judge-rapporteur in the case, Oksana Hryshchuk, informed that in accordance with Article 8.3.3 of the Code, early conditional release from serving a sentence can be applied after the convicted person has actually served “at least three quarters of the sentence imposed by the court for intentional especially serious crime, in the case of replacing a punishment in the form of life imprisonment with a punishment in the form of imprisonment for a certain term, as well as the punishment assigned to a person who was previously released on parole and committed an intentional criminal offense again during the unserved part of the sentence”.
The following follows from the content of the constitutional complaint and the documents and materials attached thereto.
The Supreme Court of Ukraine declared Anatolii Luzhynetskyi as sentenced to life imprisonment with confiscation of all property.
The applicant appealed to the Vinnytsia City Court of the Vinnytsia Region with an application for parole from serving the sentence, in which he noted that according to the Decision of the Constitutional Court of Ukraine dated September 16, 2021 No. 6-r(II)/2021 and taking into account the amendments to the Code introduced by the Law of Ukraine “On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine regarding the execution of judgments of the European Court of Human Rights “ dated October 18, 2022 No. 2690-IX (hereinafter referred to as “Law No. 2690”), the Law of Ukraine “On Amendments to the Criminal Code of Ukraine Regarding Improvement of the Procedure for Including the Period of Pre-trial Detention by the Court in the Term of Punishment” dated November 26, 2015 No. 838–VIII, on the date of filing the application, he has served twenty-five years, two months and fourteen days of the sentence imposed by the court, and therefore has the right to parole from serving the sentence.
The Vinnytsia City Court of the Vinnytsia Region rejected the application of Anatolii Luzhynetskyi, concluding that such an application “is premature and not subject to acceptance”, as the right of convicts serving life imprisonment to have the unserved part of their sentence replaced is recognised at the legislative level milder punishment and, in the future, early conditional release from serving the sentence.
The court of appeal rejected the appeal of Anatolii Luzhynetskyi, and the decision of the first instance court remained unchanged.
The author of the petition claims that as a result of the application of the contested provisions of the Code by the courts, his right to respect for human dignity was violated, namely: Article 3.1, Article 28.1, Article 28.2 of the Constitution of Ukraine and, as a result, the rights related thereto.
After examining the case materials in the public part of the plenary session, the First Senate proceeded to the in-camera part for a decision.
The Permanent Representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Maksym Dyrdin attended the public part of the plenary session.
The plenary session is available on the official website of the Court in the section “Archive of video broadcasts of sessions”.
