Among those sentenced to life imprisonment, the only realistic option for release today is to go out on a limb. Or a fatal diagnosis, when they have only a few months or weeks to live. The European Union regularly reminds Kyiv of the inconsistency of this practice with European standards. On the highest form of punishment – life imprisonment – Komersant ukrainskyi talked to Anna Ovdienko, a lawyer and human rights activist.
Anna Ovdiienko, lawyer, human rights activist. Born in Kharkiv, she graduated from V. Karazin Kharkiv University. She works with all categories of people who are in trouble due to violations of their rights. Among them are life-sentenced prisoners. More than 100 of her applications are being considered by the European Court of Human Rights (ECHR), and 28 cases have been won. Co-author of several submissions to the International Criminal Court, author of communications with UN mechanisms. Human rights trainer for judges, lawyers and human rights defenders.
Since the beginning of the Great War, several Ukrainian citizens have been convicted of treason for collaborating with the enemy. They were sentenced to life imprisonment. And this prompts us to explain to our readers, and to remind some of them, what kind of punishment this is…. At one time, it replaced the death penalty. In the late 90s, Ukraine made this decision to comply with European standards. In other countries, a person sentenced to life imprisonment has a chance to be released. After 15 years, and somewhere between 20 and 25 years, you can apply for a pardon. What is the situation in Ukraine?
In Ukraine, there are no legal mechanisms for release; in fact, a person sentenced to life imprisonment in our country is doomed to remain behind bars for the rest of his or her life. That is, newly discovered circumstances are not grounds for reviewing a sentence. For example, a witness claims many years later that he or she gave false testimony. But there is no way to overturn a sentence or review a case in which a person was sentenced to life imprisonment on the basis of false testimony.
Can’t the development of technology, in particular the latest forensic methods, which give a chance to find out the truth in old cases, help to free an innocent man?
This is impossible in our country today…
The replacement of the death penalty in the 90s was motivated by the fact that a miscarriage of justice in the case of a convicted person’s execution is impossible to correct. So, the goal is not achieved if judicial errors are not corrected?
The European Court of Human Rights (ECHR) has recognised life imprisonment in Ukraine as torture, in fact, it is a deferred death penalty. A person has no hope of being released. That is, you can’t do anything about a person, it is in their nature to hope, but there is almost no chance. And this is recognised as torture. Since 2001, there has been a presidential pardon available after 20 years of service. After the ECHR ruling, the Criminal Code was amended. Now, after 15 years in custody, life imprisonment can be commuted to a sentence of 15 to 20 years. This period starts from the moment the court makes such a decision; the time the convict has served is not taken into account. So a person sentenced to life, if they are “lucky” and are given a specific term, has minimal chances of seeing freedom. Because only a person who was imprisoned at a young age and in very good health can serve 35-40 years…
Could you give us an example of a case that requires intervention and review? After all, the practice of investigating criminal cases, in particular particularly serious crimes, has changed over the years of independence.
For example, in the noughties, sentences were passed on the basis of self-incrimination, and the suspect signed a so-called “confession” under torture. Other evidence was adjusted to it, and a sentence of life imprisonment was passed. Now the courts have simply stopped blindly passing sentences in cases where confession is the “queen of evidence”. This happened around 2010. Those old cases require special scrutiny. I am familiar with about a hundred cases with such a verdict. About 20% of them are very questionable, and the verdicts in them have a high chance of being overturned.
Could you give us some examples, the most egregious cases?
I know of a case where a guy aged 18 received the maximum sentence. He had graduated from school with a gold medal, passed his first university exam with flying colours and decided to celebrate. A fight broke out. He was in the group that killed the victim. The investigation and the court were unable or unwilling to find out who had delivered the fatal blow, and everyone was given life imprisonment… This is an illustration of how decisions were made to put someone behind bars for the rest of their lives.
What was your last client, who was released in Ivano-Frankivsk Oblast, convicted of?
He was convicted of murder. However, his condition, caused by stage 4 lung cancer, constant high temperature, coughing up blood and severe pain, required pain relief, and it was too late to treat him. He could not receive such medicines in the colony. His further detention would have been torture. So the court decided to release him, albeit at the second attempt. The prosecutor’s office did not appeal the decision.
In general, how many people are we talking about? How many people are sentenced to life imprisonment in Ukraine?
The approximate number is 2000 people. Now they are being added to those who have received such a sentence for a crime against the state – high treason. I have to say that the attitude towards such convicts in prisons is very bad, both from other convicts and from the administration.
How many were released? What are the options for release?
I can roughly estimate the number of those released who were serving life sentences – less than 5%. There were 4 cases in my law practice. Two of them were for health reasons, they suffered from terminal cancer, one died, the other is still alive. And in two of them, the ECHR made a decision in which it declared inadmissible certain evidence that was the basis of the verdict. The Supreme Court amended the verdicts, and the evidence that remained did not provide grounds for a sentence of life imprisonment. Therefore, by the decision of the High Chamber of the Supreme Court, the cases were sent back to the court of first instance, where they remain to this day. The people have been released. There are also pardons granted by the President of the country. Only one woman has been pardoned since the existence of such a punishment as life imprisonment.
Have you talked to those sentenced to the highest form of punishment in the colonies? What does it look like? What kind of people are they? To what extent are they deformed by their long stay in captivity?
Yes, I have participated many times in monitoring missions to penal institutions. And, of course, I talked to my clients. Security measures mean that they are brought in handcuffs and kept in a cage during communication. But the administration sometimes takes into account the individual characteristics of the convicts, whether they are aggressive or not… We insist with our colleagues that they should not be kept in cages. There was a funny case when we, three lawyers, decided to enter the cage, because the bars should separate us from the convicts.
A long stay in captivity exacerbates the main traits of a person that they had when they were free. Often, life prisoners give the impression of educated, intelligent, erudite people. And it is actually somewhat true. Aggressive antisocial types are more likely to be found among those sentenced to a specific term of imprisonment.
Most of them are married, some for the second or even third time. I know one couple where the wife has been married to the convict for 16 years for life. Others divorce and remarry while in prison. Many life-sentenced prisoners want to work, but only a few colonies have the conditions for this. For the first ten years, they spend two or three years in a cell, and if they want to, they can be in solitary confinement. Walks are in the yard, which is essentially a cell without a roof. They can see the sky, clouds and sun, but not the trees….
After ten years in prison, they have the right to live in a dormitory, i.e. in a colony, where there is a local area where they can move freely. I can say that the conditions of detention are gradually improving. In the colonies, in the sections for life sentenced prisoners, repairs are being made. But the medical care system remains a weak point, it is even getting worse. The convicts are practically not treated.
In your opinion, when can we expect amendments to the legislation that will allow us to introduce the European practice of implementing such a punishment as life imprisonment? For people to have a chance to be released and socialise, for unjust sentences to be reviewed and for unjustly convicted people to be released…
I think this will be possible after the war is over, after the victory. If Ukraine continues to move towards the EU, it will be forced to make appropriate changes, to give the convicts a chance for release, not a ghostly one after forty years in custody, but a real prospect. Now everyone says that this is not the time. After the victory, we hope…
Author: Anvar Derkach