Replacing the unserved part of the sentence with a lighter one applies to term sentences and does not apply to life imprisonment. This was pointed out by the Donetsk Court of Appeal, leaving unchanged the decision of the court of first instance, which refused to replace the convicted person's sentence of life imprisonment with a sentence of 25 years of imprisonment.
According to the case materials, the Court of Appeal of the Donetsk region convicted the citizen under Art. 69, paragraph "a, d, e, i" Art. 93, Part 2 of Art. 142, Part 3 of Art. 142, Part 3 of Art. 215-3 of the Criminal Code of Ukraine of 1960, Part 4 of Art. 187, Art. 257 of the Criminal Code of Ukraine of 2001, with the application of Art. 70 of the Criminal Code of Ukraine of 2001 to life imprisonment with confiscation of all property back in 2005.
His lawyer asked the local court to replace the unserved part of the sentence with a milder one. In December 2021, the Artemiv City District Court of the Donetsk Region refused to grant the petition. The defender filed an appeal against this court decision.
The defender referred to the practice of the ECtHR and the decision of the Constitutional Court of Ukraine No. 6-r(II)/2021 of September 16, 2021.
In the case "Petukhov v. Ukraine-2" and "Lebedev and others v. Ukraine" dated July 22, 2021, one of the applicants is the convicted Ch., it was established that the state violated Art. 3 of the Convention on the Protection of Human Rights and Fundamental Freedoms regarding life imprisonment without the prospect of release.
The Constitutional Court of Ukraine declared unconstitutional part 1 of Art. 81, Part 1 of Art. 82 of the Criminal Code of Ukraine, as they make it impossible to apply them to persons sentenced to life imprisonment, and obliged the Verkhovna Rada of Ukraine to immediately bring the legislation into line with the Constitution of Ukraine.
The panel of judges of the appeals court noted that as of today, no changes have been made to the legislation, and the system of reviewing sentences for life prisoners has not been reformed. Courts are not subjects authorized to fulfill the positive duty of the state to meet the requirements of Art. 3 of the Convention.
Similarly, the Grand Chamber of the Supreme Court (case No. 1-42/2004 dated July 8, 2020) expressed a similar opinion on this matter, which stated that a distinction should be made between the rulemaking powers that belong to the Verkhovna Rada of Ukraine and the law enforcement powers that are exercised by the courts.
The Court of Appeal emphasized that Art. 82 of the Criminal Code of Ukraine establishes an exhaustive list of punishments, upon serving of which it is possible to replace the unserved part of the punishment with a milder one, and life imprisonment is not included in this list.
"General for the types of punishments to which the replacement of the unserved part of the punishment with a milder punishment can be applied is that all of them are fixed-term. The punishment in the form of life imprisonment imposed by Ch. is not a punishment imposed for a certain period of time, and therefore the provisions of Art. 82 of the Criminal Code of Ukraine", – stated in the decision of the appeal court.