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DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

of September 16, 2021 No. 6-r (II)/2021

According to the constitutional claims of Krupko Dmitry Vladimirovich concerning compliance of the Constitution of Ukraine (constitutionality) of part one of Article 81, parts one of article 82 of the Criminal code of Ukraine, Kostin Vladimir Vladimirovich, Melnichenko Alexander Stepanovich concerning compliance of the Constitution of Ukraine (constitutionality) of part one of article 82 of the Criminal code of Ukraine and according to the constitutional claim of Gogin Victor Ivanovich concerning compliance of the Constitution of Ukraine (constitutionality) of part one of article 81 of the Criminal code of Ukraine (case on review of sentence to person punishable on lifelong imprisonment)

Case No. 3-349/2018 (4800/18, 1328/19, 3621/19, 6/20)

The second senate of the Constitutional Court of Ukraine as a part of judges:

Golovaty Sergey Petrovich - the chairman, the speaker, Gorodovenko Victor Valentinovich - the speaker, Lemak Vasily Vasilyevich, Moysik Vladimir Romanovich, May Day Oleg Alekseevich, Slidenko Igor Dmitriyevich, Yurovskaya Galina Valentinovna,

considered in meeting case on the constitutional claims of Krupko Dmitry Vladimirovich concerning compliance of the Constitution of Ukraine (constitutionality) of part one of Article 81, to part one of article 82 of the Criminal code of Ukraine, Kostin Vladimir Vladimirovich, Melnichenko Alexander Stepanovich concerning compliance of the Constitution of Ukraine (constitutionality) of part one of article 82 of the Criminal code of Ukraine and according to the constitutional claim of Gogin Victor Ivanovich concerning compliance of the Constitution of Ukraine (constitutionality) of part one of article 81 of the Criminal code of Ukraine.

Having heard Golovaty S. P. judges-speakers, Gorodovenko V. V. and having researched case papers, the Constitutional Court of Ukraine

established:

1. Appealed to the Constitutional Court of Ukraine:

Krupko Dmitry Vladimirovich with the petition to consider question of compliance of the Constitution of Ukraine (constitutionality) of part one of Article 81, of part one of article 82 of the Criminal code of Ukraine (further - the Code);

Kostin Vladimir Vladimirovich with the petition to consider question of compliance of the Constitution of Ukraine (constitutionality) of part one of article 82 of the Code;

Melnichenko Alexander Stepanovich with the petition to consider question of compliance of the Constitution of Ukraine (constitutionality) of part one of article 82 of the Code;

Gogin Victor Ivanovich with the petition to consider question of compliance of the Constitution of Ukraine (constitutionality) of part one of article 81 of the Code.

According to instructions of part one of article 81 of the Code parole from serving sentence can be applied to persons serving sentence in the form of corrective works, office restrictions for the military personnel, restriction of freedom, content in disciplinary battalion of the military personnel or imprisonments. Person can be conditionally ahead of schedule exempted fully or partially and from serving of additional punishment".

According to instructions of part one of article 82 of the Code "to persons serving sentence in the form of restriction or imprisonment, unexpired part of punishment can be replaced with court milder pinishment. In these cases milder pinishment is imposed within the terms established in the General part of this Code for this type of punishment and shall not exceed the unexpired term of the penalty imposed by sentence".

Persons of law on the constitutional claim claim that Article part one 81, part one of article 82 of the Code there do not correspond parts two of article 28 of the Constitution of Ukraine as do not regulate questions of parole from serving sentence in the form of lifelong imprisonment or replacement of unexpired part of punishment in the form of lifelong imprisonment by milder pinishment. They consider that they based on article 28 of the Constitution of Ukraine have the right to review of punishment in the form of lifelong imprisonment, and also the right to know by what criteria and when such review can be performed. Authors of petitions also claim that according to practice of the European Court of Human Rights the lack of realistic prospect to be exempted from serving sentence in the form of lifelong imprisonment contradicts the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention).

2. Resolving the questions which are brought up in the constitutional claims, the Constitutional Court of Ukraine proceeds from the following.

2.1. According to article 3 of the Constitution of Ukraine the person and his advantage are recognized as the supreme value; human rights and freedoms and their guarantees determine content and orientation of activities of the state; the state answers to the person for the activities; approval and providing human rights and freedoms is the main obligation of the state (part one, the second).

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