FOR OR AGAINST THE DECRIMINALIZATION OF THE ARTICLE 391 OF THE CRIMINAL CODE OF UKRAINE

Abstract

The article is devoted to consideration of the decriminalization of Article 391 of the Criminal Code of Ukraine. An important argument in favour of decriminalizing this article is a direct reference to this in the Recommendation of the European Committee for the Prevention of Torture following the visit to Ukraine in 2016.

The article analyzes the disadvantages of the technical and legal nature and the problems of the application of this norm by a survey conducted by the employ- ees of the State Criminal-Enforcement Service of Ukraine and those sentenced to imprisonment.

The article draws attention to the fact that this article really cannot prolong its existence. But to completely remove the criminal responsibility for this act, it is necessary to focus not on the form or requirement of a narrow group of people, but on the needs of the whole society if this norm is unnecessary or even harmful.

Foreign experience shows that this unique articles are not present in other legal systems. However, to carry out solely such analysis on one item is not correct given the fact that it is necessary to systematically compare the legal framework of enforcement of sentences and prevent the commission of actions related to the non- compliance with the lawful requirements of the employees of penitentiary institu- tions in general. Because without using criminal liability, in foreign countries have a wide range of procedural tools not available in the current legislation of Ukraine. And taking into account international experience is essential only systematically, and not selectively. It includes dynamic security, mechanisms and tools for rehabili- tation, risk assessment and holding theconvicts in cells.

80 % of the polled employees of the State Criminal-Enforcement Service of Ukraine consider that placing placement in a disciplinary cell or cell-type room is the most effective means of influence on a person who systematically violates the established order of execution and serving sentence. It is not a problem for employ- ees of penitentiary institutions, but as a state policy in this area. The article substan- tiates the need for changes to Article 391 of the Criminal Code of Ukraine in the proposed wording of the author.