The Second Senate of the Constitutional Court of Ukraine at a plenary session on December 20, 2023 delivered a Decision in the case upon the constitutional complaint of Anatolii Luzhynetskyi regarding the conformity of individual provisions of Article 111.1 of the Criminal Executive Code of Ukraine with the Constitution of Ukraine (regarding the personal and family life of a person sentenced to life imprisonment).
Anatolii Luzhynetskyi, who was sentenced to life imprisonment and is serving his sentence, appealed to the Constitutional Court of Ukraine to declare as inconsistent with the Constitution of Ukraine individual provisions of Article 111.1 of the Criminal Executive Code of Ukraine (hereinafter - the Code), according to with which convicts held in penal colonies of the minimum security level with easier conditions of detention, social rehabilitation units of penal colonies of the minimum security level with general conditions of detention and social rehabilitation units of penal colonies of medium security level and educational colonies are allowed short-term trips outside the territory of the colony of Ukraine for a period of no more than seven days, without taking into account the time required for travel in both directions (no more than three days), in view of exceptional personal circumstances, in particular such as “the death or serious illness of a close relative, which threatens the life of the patient”.
The subject of the right to a constitutional complaint believes that due to the application by the courts of Article 111.1 of the Code, a number of his constitutional rights were violated.
The author of the petition asserts discrimination against persons sentenced to life imprisonment, which he sees in the fact that, according to the contested provisions of the Code, “short-term trips to relatives whose serious illness threatens their lives are provided <...> only for convicts who are kept in minimum and medium levels of security”, and for persons sentenced to life imprisonment, “who are kept in the maximum level of security, are not provided for, even if the latter have evidence of their correction”.
The Constitutional Court of Ukraine, in the aspect of deliberation of the issues raised in the constitutional complaint of Anatolii Luzhynetskyi, verified the conformity with the Constitution of Ukraine of individual provisions of Article 111.1 of the Code, which make it impossible especially for persons sentenced to life imprisonment to travel briefly outside the colony on the territory of Ukraine in connection with such an exceptional personal circumstance as the death or serious illness of a close relative, that threatens the patient's life.
The Constitutional Court of Ukraine declared as inconsistent with the Constitution of Ukraine individual provisions of Article 111.1 of the Code in that they make it impossible to apply to persons sentenced to life imprisonment short-term trips outside the colony on the territory of Ukraine in connection with such an exceptional personal circumstance , such as the death or serious illness of a close relative that threatens the patient's life.
The decision of the Constitutional Court of Ukraine is based on international law instruments, in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Universal Declaration of Human Rights of 1948 (hereinafter - the Declaration), the International Covenant on Civil and Political Rights of 1966, Recommendations Rec(2003) 23 of the Committee of Ministers of the Council of Europe to the member states regarding the organization by the administrations of penitentiary institutions for prisoners serving life and long terms of imprisonment, Recommendation Rec(2006)2-rev (as amended) of the Committee of Ministers of the Council of Europe to the member states on the European Penitentiary Rules (hereinafter – European Penitentiary Rules), Recommendation No. R (82) 16 of the Committee of Ministers of the Council of Europe to member states on temporary release from places of deprivation of liberty, Minimum Standards of the United Nations Rules for the Treatment of Prisoners (Nelson Mandela Rules), Guidelines on application of the Nelson Mandela Rules (2018), the United Nations Consolidated Principles for the Protection of All Persons Detained or Imprisoned in Any Form, as well as the case law of the European Court of Human Rights.
In the Decision, the Constitutional Court of Ukraine took into account its own legal positions, as well as the jurisprudence of constitutional jurisdiction bodies of European countries, in particular Germany and Latvia.
The Constitutional Court of Ukraine noted that the key principles in the issue of execution and serving of criminal punishments in international law are the equally humane and dignified treatment of all persons deprived of their liberty, regardless of the gravity of the crimes committed by them.
The Constitutional Court of Ukraine emphasised that the absolute value of human dignity is above all an equally humane treatment of everyone and respect for the essence of human nature, regardless of personal, social or other status. Therefore, the mechanism of execution and serving of criminal punishments for all persons sentenced to imprisonment, regardless of the gravity of the crimes committed by them, cannot lead to the destruction of a person as an individual, humiliation and devaluation of his moral, psychological, spiritual qualities and needs, cancellation of everyone's right to humane treatment to oneself, as well as to level the essential content of constitutional human rights and freedoms.
The court stated that everyone's opportunity to visit their seriously ill close relative or to be present at their funeral is a component of the constitutional right to the inviolability of personal and family life in connection with human dignity. Therefore, the state must ensure the establishment of an appropriate mechanism for the realisation of such an opportunity, recognising it for all persons sentenced to imprisonment, even for those of them who have committed particularly grave crimes and are sentenced to life imprisonment.
The Constitutional Court of Ukraine also noted that the case law of the European Court of Human Rights does not exclude the fact that, under certain circumstances, the issue of the lack of opportunity for a person deprived of liberty to visit a seriously ill close relative or to be present at his funeral may be considered in terms of a violation of Article 3 of the Convention, which prohibits torture or inhuman or degrading treatment or punishment.
The Constitutional Court of Ukraine concluded that the recognition by the state for all persons sentenced to imprisonment, regardless of the gravity of the crimes committed by them, the potential opportunity to visit their seriously ill close relative or to be present at his funeral will not only contribute to the protection of the human dignity of such convicts, the protection of their constitutional rights to the free development of one's personality and the inviolability of personal life, but will also be a manifestation of the state's fulfilment of its positive duty regarding social rehabilitation, an indicator of the affirmation of humanity and civility of society in general.
In the Decision, the Court emphasised that at the international level, temporary abandonment of places of deprivation of liberty is considered as an effective means of correction and social rehabilitation of persons sentenced to imprisonment, especially if it is caused by exceptional personal circumstances, in particular the death or serious illness of a close relative. Such a measure can be applied to all persons sentenced to imprisonment, including those sentenced to life imprisonment, if it is not incompatible with guaranteeing public safety and maintaining public order.
The Constitutional Court of Ukraine, based on the humanistic orientation of the Constitution of Ukraine, the importance of human dignity during the execution and serving of criminal punishments, notes that the establishment by the criminal law of Ukraine, primarily the Code, of the procedure and conditions for the execution and serving of criminal punishments must also guarantee respect for the human dignity of all convicts persons, the inviolability of the essence of their rights and freedoms, correction and resocialization of such persons, and public safety and protection of public order in the aspect of preventing new criminal offenses by convicted persons and ensuring the inevitability of execution and serving of punishments.
The Constitutional Court of Ukraine stressed that everyone's opportunity to visit their seriously ill close relative or attend their funeral is part of the constitutional right to the inviolability of personal and family life, the source of which is human dignity. Taking into account the above and the provision of Article 63.3 of the Constitution of Ukraine, according to which a convicted person enjoys all human and citizen’s rights, with the exception of the restrictions defined by law and established by a court verdict, the Constitutional Court of Ukraine emphasises that the specified opportunity should also be available to persons sentenced to life imprisonment .
The Constitutional Court of Ukraine pointed out that the state is obliged to provide every person sentenced to imprisonment, regardless of the gravity of the crime committed by him, at least the potential possibility of a short-term visit outside the colony on the territory of Ukraine in connection with such an exceptional personal circumstance as death or serious illness of a close relative that threatens the patient's life, however, before granting permission for such departure, the relevant subject of authority must conduct a comprehensive individual assessment of the threat posed by each such person to public safety and public order, which is not limited only to taking into account the gravity of the crime committed by him. Such an assessment will not cause inevitable negative consequences for public safety and public order, and at the same time will be less burdensome for the rights and freedoms of persons sentenced to life imprisonment compared to the fact that the specified possibility is not defined by the contested provisions of the Code, which in fact allows the limitation of the constitutional right to the inviolability of personal and family life of such convicts on the basis of a single criterion - the gravity of the crimes committed by them.
Also in the Decision, the Court stressed that the contested provisions of the Code indicate that the state does not fulfil its positive obligation regarding the social rehabilitation of persons sentenced to life imprisonment, which, in turn, does not correspond to the positive obligation imposed on the state to recognise human dignity as the highest value which is defined by Article 3 of the Constitution Ukraine's.
On the basis of the above, the Constitutional Court of Ukraine concluded that individual provisions of Article 111.1 of the Code contradict Articles 3, 8, 21, 23, 24, 28, 32, 64 of the Constitution of Ukraine in that they make it impossible to apply to persons sentenced to life imprisonment short-term trips outside the colony on the territory of Ukraine in connection with such an exceptional personal circumstance as the death or serious illness of a close relative, which threatens the patient's life.
Individual provisions of Article 111.1 of the Criminal Executive Code of Ukraine in that they make it impossible to apply to persons sentenced to life imprisonment short-term trips outside the colony on the territory of Ukraine in connection with such an exceptional personal circumstance as the death or serious illness of a close relative, which threatens the patient's life, declared as unconstitutional, shall expire three months after the date of delivering this Decision.
The Constitutional Court of Ukraine obliged the Verkhovna Rada of Ukraine within three months to bring the normative regulation established by individual provisions of Article 111.1 of the Criminal Executive Code of Ukraine into compliance with the Constitution of Ukraine and this Decision.
