Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 78
Julio
Septiembre
2023
Recibido el 20/02/23 Aceptado el 14/04/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 78 (2023), 203-217
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Prospects for improving public
control over the observance
of the rights of convicts
DOI: https://doi.org/10.46398/cuestpol.4178.14
Pavlo Harasym *
Roma Sybirna **
Volodymyr Ortynskyi ***
Roman Shai ****
Mariia Maskovita *****
Abstract
Using the dialectical method the publication was devoted to
determining the prospects for improving public control over the
observance of the rights of convicts in Ukraine. A clear distinction
is indicated between state and non-state control, i.e.: (execution
of control functions on observance of rights, exercise of moral and
educational inuence, educational work, placement of released persons,
etc.), and standardization of relevant provisions in the corresponding
legislation. It is argued that ensuring openness and transparency of the
activities of penitentiary bodies and institutions is not the goal of public
control, and the approach to its interpretation should not be equated
with such concepts as «aid» and «sponsorship». In the conclusions it
is substantiated that in order to reect in the Ukrainian legislation the
principle of openness of penal institutions for the society, it is necessary to
overcome: formalism of public control by the observation boards over the
* Candidate of Law, Associate Professor, Head of the Lviv District Police Department of the Main
Directorate of the National Police of Ukraine in the Lviv Region Colonel of police Doctoral Student of
Lviv Polytechnic National University, Lviv, Ukraine. ORCID ID: https://orcid.org/0000-0002-0336-
4710
** Doctor of Biological Sciences, Professor, Professor of the Department of Criminal Law and Procedure of
the Educational and Scientic Institute of Law, Psychology and Innovative Education, Lviv Polytechnic
National University; Professor of the Department of Theoretical Psychology of the Lviv State University
of Internal Aairs; Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-5704-2004
*** Doctor of Law, Professor, Honored Lawyer of Ukraine, Director of the Educational and Scientic
Institute of Law, Psychology and Innovative Education, Professor of the Department of Criminal
Law and Procedure, Lviv Polytechnic National University. Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0001-9041-6330
**** Candidate of Law, Associate Professor, Associate Professor at the Department of Criminal Law and
Procedure Lviv Polytechnic National University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-
0003-2788-6035
***** Candidate of Law, Assistant at the Department of Criminal Law and Procedure of the Educational and
Scientic Institute of Law, Psychology and Innovative Education, Lviv Polytechnic National University,
Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-0703-556X
204
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
implementation of the rights of convicts; to grant the right to exercise public
control to other subjects of public control, in particular to the mass media,
along with the active borrowing of progressive international practices in the
specied eld.
Keywords: penitentiary system; rights of convicted persons;
public control; penal enforcement activity; observation
commissions.
Perspectivas para mejorar el control público sobre la
observancia de los derechos de los convictos
Resumen
Mediante el método dialéctico la publicación estuvo dedicada a
determinar las perspectivas para mejorar el control público sobre la
observancia de los derechos de los condenados en Ucrania. Se indica una
clara distinción entre el control estatal y no estatal, esto es: (ejecución de
las funciones de control sobre la observancia de los derechos, ejercicio de la
inuencia moral y educativa, trabajo educativo, colocación de los liberados,
etc.), y la normalización de las disposiciones pertinentes en la legislación
correspondiente. Se argumenta que garantizar la apertura y transparencia de
las actividades de los órganos e instituciones penitenciarias no es el objetivo
del control público, y el enfoque de su interpretación no debe equipararse
con conceptos tales como «ayuda» y «patrocinio». En las conclusiones se
fundamenta que para reejar en la legislación ucraniana el principio de
apertura de las instituciones penales para la sociedad, es necesario superar:
el formalismo del control público por parte de los consejos de observación
sobre la aplicación de los derechos de los condenados; otorgar el derecho
a ejercer el control público a otros sujetos de control público, en particular
a los medios de comunicación social, junto al préstamo activo de prácticas
internacionales progresivas en el campo especicado.
Palabras clave: sistema penitenciario; derechos de los condenados;
control público; actividad de ejecución penal;
comisiones de observación.
Introduction
Adequate functioning of any civil society depends on the interrelationship
of state authorities and public entities in the eld of control, such activity
205
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
of the relevant entities is the main component of the development of a
democratic and eective state.
Public control, as a specic form of human activity, is a social activity,
and a person is its subject and object. It formulates control goals,
determines the means of achieving them, and evaluates the degree of
achievement (Mukshymenko, 2010). Under the condition of eective and
proper functioning of the system of public control and activities of public
organizations, society can develop on a democratic basis, create conditions
for the realization of the rights and responsibilities of its citizens.
The importance of public control over the observance of the rights
of convicts in Ukraine also lies in the direct involvement of the public,
clarication of their opinions, proposals for improving control and the
penitentiary system in general. The specied type of control is actually an
additional means of ensuring legality and transparent functioning of law
enforcement agencies. The presence of public control guarantees the absence
of arbitrariness and the use of illegal methods of activity by representatives
of the penitentiary system, and on the other hand, supervision of the proper
observance of the state’s obligations regarding the social security of such a
category of citizens as convicts.
The special interest of public control over the closed criminal-executive
system is due to numerous discovered facts of gross violation of the rights
of persons who are in places of forced detention. Such facts provoke a
universal resonance and stimulate the activity of public formations. Under
such conditions, one of the key tasks of the state in this area is to ensure
the openness and transparency of the activities of criminal enforcement
institutions, their control by institutions of civil society, and the creation
of conditions for public participation in solving the tasks set before such
institutions and bodies.
To date, a number of normative decisions have been adopted in Ukraine
in the researched area, active work is being carried out on their practical
implementation, but the issue of public control over ensuring the rights
of persons in prisons and detention centers is still debatable. The main
reason for this is the imperfection of modern national legislation, its non-
compliance with international standards in the specied area, as well as the
low eciency of its implementation mechanisms.
Also, in the current conditions of the formation of civil society, a clear
distinction between non-state (public) control and state control becomes
especially relevant (Tereshchuk, 2015). Clarication of these issues in the
scientic article will allow a more thorough and holistic characterization
of public control as one of the areas of activity aimed at increasing and
improving the functioning and organization of the penitentiary system of
Ukraine, proper protection of the rights and legitimate interests of convicts
in places of punishment.
206
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
1. Methodology of the study
The methodological basis of the scientic article is the dialectical
method, which was used when studying the unity, interrelationship, and
dierences of such concepts as «state control» and «public control» in the
criminal and executive sphere, as well as when distinguishing the concepts
of «public control», «help» and «patronage». With the help of the historical
method, the sources of the formation and development of the essence of
public control over the observance of the rights of convicts were identied.
With the use of analysis and synthesis methods, the place and role of
the researched type of control over the observance of rights in places of
punishment is determined. The structural-functional method, methods of
classication and grouping helped in the study of the complex of functions
covered by the concept of public control.
The logico-semantic method was used to clarify the peculiarities of
the regulation of provisions on the implementation of public control in
the specied area, to clarify the powers of observation commissions, to
determine the essence of the best world practices of public control over
the observance of the rights of convicts. The comparative legal method was
used in the process of researching the foreign experience of implementing
public control in the specied area and the possibility of its implementation
in domestic legislation.
The hermeneutic method is applied to the scientic analysis of the
provisions of the national legislation in terms of the application of public
inuence on compliance with the law in penitentiary institutions. The
statistical method was used to generalize the survey results. The formal-
logical method was used to substantiate proposals for clarifying and
supplementing the provisions of industry legislation.
2. Analysis of recent research
Scientists (Kolb and Makhnitskiy, 2019; Tereshchuk, 2018; Barabash and
Pavshuk, 2010; Vitvitskyy, 2013) made a signicant scientic contribution
in the eld of the researched topic analysis of public inuence on the state
of compliance with the law in places of execution. However, despite the
signicant number of scientic developments related to the participation
of the public in the observance of individual rights in the institutions of
the penitentiary system, the issue of a clear distinction between state and
public control, and the normalization of certain areas of activity of subjects
of public control in the observance of the rights of convicts, do not lose their
relevance.
207
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
In addition, issues regarding the normalization of individual provisions
aimed at improving the general situation in the researched area remain
quite debatable. The above-mentioned circumstances determined the
choice of the topic and the main directions of the research.
3. Results and discussion
In the doctrine, public control is understood as the public verication
by public society of the activities of the state in accordance with its declared
goals, the adjustment of these activities and the goals themselves, the
subordination of state policy, the activities of its bodies and ocials to
the interests of society, as well as the supervision of civil society over the
activities of state and local bodies self-government, aimed at protecting and
ensuring the rights and legitimate interests of a person and fundamental
freedoms and respect for them (Zakharov, 2023).
From the analysis of scientic points of view on the concept and essence
of public control, we see an opportunity to single out the most important
features of the investigated type of control: it has specic tasks and goals;
carried out by specic subjects: both individual (citizens) and collective
(public associations, organizations, etc.); subjects of public control act on
behalf of the public, not the state; decisions of subjects of public control are
of a recommendatory nature and are mostly preventive in nature; public
control concerns virtually all areas of activity of law enforcement agencies
in the state; subjects of public control do not have the right to interfere
in the operational activities of the controlled structure (law enforcement
agencies) (Barabash and Pavshuk, 2010; Vitvitskyy, 2013; Tereshchuk,
2018).
Given the lack of an unambiguous approach to dening the content of
public control both in science and in normative legal acts, we believe that
the normative consolidation of this concept would make it possible to avoid
a number of inconsistencies in the specied eld of legal relations.
The goals of public control over the observance of the rights and
legitimate interests of persons serving sentences in places of deprivation of
liberty are subordinated to the general constitutional goal of recognizing a
person as the highest social value.
Therefore, public control should ensure the eective operation of
bodies and institutions for the execution of punishments in order to
ensure the realization of their rights by the persons detained in them. The
conditionality and justication of the goals of public control are determined
by various factors. First of all, they must comply with the provisions of the
Constitution, in addition, they depend on the general political goals that are
currently being faced by the system of execution of criminal punishments.
208
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
We share a position A. Mukshimenko’s that the main goal of public
control over this process is to ensure unwavering observance of the rights
and freedoms of a person and a citizen, taking into account the restrictions
established by the court verdict and the law regarding persons detained in
penitentiary institutions. At the same time, the principled observance of the
constitutional rights of individuals must correspond to the needs and will of
society, its primary subject – the people (Mukshymenko, 2010).
The specied goal is strategic and consists in creating conditions
for the observance of human and citizen rights in individual bodies and
institutions for the execution of punishments. The authors of some literary
sources come to the conclusion that the goals of monitoring the activities of
the penitentiary system personnel are subordinated to the general goals of
criminal punishment and are oriented towards their implementation. This
is also recognized as fair in relation to public control over the activities of
bodies and institutions for the execution of punishments (Zubarev, 2006).
At the same time, it must be stated that state bodies sometimes
misinterpret the content of control activities, especially when it concerns
public control. Thus, the Law of Ukraine «On the State Criminal Enforcement
Service of Ukraine» No. 2713-IV dated 23.06.2005 lists the following
among the principles of its activity: interaction with state authorities, local
self-government bodies, associations of citizens, charitable and religious
organizations; openness to democratic civilian control.
However, in practice, these concepts are often mixed. For example,
the State Department for the Execution of Punishments comments on its
understanding of public control in the Concept of Social Partnership of
Public Organizations and Penitentiary Bodies and Institutions: «Achieving
the goal of correction and resocialization of convicts corresponds to the
moral and spiritual interests of society, which necessitates the active
participation of public organizations in the process restoration of convicts
in the social status of a full member of society, returning them to an
independent, generally accepted social and normative life in society.
The country’s history has rich experience in the activities of various
public institutions, which voluntarily performed the functions of caring
for those members of society who are in places of deprivation of liberty...»
(Law of Ukraine No 2713-IV, 2005).
Thus, we see the desire of individual state structures to shift the emphasis
from public control as such to control as a form of social partnership
and assistance (patronage) to persons in prisons. This state of aairs is
unacceptable in a democratic legal society.
It is important to emphasize that the goal of public control over the
observance of human rights and freedoms during the execution of criminal
punishments cannot be the same as ensuring the openness and transparency
209
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
of the activities of the criminal enforcement service as a subject of criminal
proceedings. administrative and legal relations. If such an approach is used,
a dangerous tendency may arise for the penitentiary service to implement
the principles of openness and transparency through subjects of public
control, and the rights and powers of other representatives of civil society
will be limited. unreasonably limited. It is also worth emphasizing that
ensuring openness and transparency is the task of the authorities, not civil
society institutions, which work to prohibit the denition of such a goal for
public control.
Therefore, it should be emphasized that the purpose of public control
over the observance of human rights and freedoms during the execution
of criminal punishments cannot be equated with the purpose of ensuring
the openness and transparency of the activities of the criminal enforcement
service as a subject of administrative and legal relations.
In case of continuation of lobbying of this kind of approach, there may
be a dangerous tendency for the penitentiary service to implement the
principles of openness and transparency exclusively through subjects of
public control, and the rights and powers of other representatives of civil
society will be unduly limited. It is also worth emphasizing that ensuring
openness and transparency is the task of authorities, not institutions of civil
society, which indicates the fallacy of dening such a goal for public control.
The process of reforming the criminal-executive system of Ukraine
was reected in the Criminal-Executive Code of Ukraine in 2003, which
dened a special place for public control and established one of the main
principles of criminal-executive legislation – public participation in the
activities of bodies and institutions for the execution of punishment. So,
we can talk about increasing the role of public organizations in creating
proper conditions for serving a sentence, ensuring compliance with human
rights and freedoms, assisting in the social adaptation of citizens after
release, conducting educational activities, as well as preventing them from
committing new criminal oenses.
According to the Criminal Executive Code of Ukraine, citizens’
associations, religious or charitable organizations, and individuals may
take part in the correction and resocialization of convicts and conduct social
and educational work with them (Criminal Executive Council Of Ukraine,
2003).
In order to ensure public control over the observance of the rights of
convicts during the execution of criminal sentences, in accordance with the
Resolution of the Cabinet of Ministers of Ukraine «On Approval of Provisions
on Monitoring Commissions and Boards of Trustees at Special Educational
Institutions» No 429 dated 01.04.2004, monitoring commissions are
created (Resolution Of The Cabinet Of Ministers Of Ukraine No 429, 2004).
210
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
According to the idea of the legislator, the formation of observation
commissions by executive committees and state administrations with
the simultaneous mandatory inclusion of representatives of public
organizations in them is the optimal form of combining the eorts of the
authorities and the public.
The authorities have a real opportunity to provide nancing and
organizational and technical support for the measures being implemented,
to provide the form of ocial prescriptions to the decisions of the
observation commission, and public organizations have not only nancial
opportunities for this, but also free time and desire. In addition, observation
commissions are a kind of connecting link between the authorities, society
and the convicted (released).
Today, the participation of the public in the process of execution of
criminal punishments is axiomatic, and the involvement of various groups
of civil society in the process of reforming the penitentiary system is an
integral part of the humanization and democratization of the criminal-
executive system and ensures its openness and transparency.
It is worth noting that the course of humanizing the criminal justice
system, which was chosen by the world community, has both its supporters
and opponents. The rst indicate that the conditions of a person’s stay in
places of deprivation of liberty characterize the level of development of the
respective society. Others point to the fact that no country has been able to
prove that more humane treatment of criminals would lead to an overall
decrease in crime.
In many countries of the world, schemes of interaction between the public
and law enforcement agencies have already developed and are successfully
functioning, in other countries they are searching for and testing their own
models. Despite the fact that each country follows dierent paths, taking
into account traditions, culture and national characteristics, the existing
world experience shows that there are a number of general trends and
principles of building structures (in particular, observation commissions
or observation councils), implementation of public control and patronage ,
which would be expedient to implement in Ukraine.
For example, in Great Britain there are Councils of Inspectors at each
prison, and in Germany – Advisory Councils, the typical tasks of which are:
providing reports to the management of the prison and penitentiary system
regarding existing problems and proposals for improving certain areas of
work, considering complaints, promoting the social adaptation of convicts
after release and other. Monitoring commissions created in each region
have the right to check the living and maintenance conditions of detainees,
accused and convicted persons.
211
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
Members of the commissions may visit pretrial detention centers,
prisons, and colonies without special permission (but without fail to notify
the administration). The conversation with the human rights defenders
should take place only in such conditions that the representative of the
administration can see and hear them, and it is allowed to have a one-on-
one conversation with the convicts (Kochergan and Danovsky, 2023).
Kazakhstan is considering whether to develop and implement a system
of public accreditation of correctional facilities based on international and
national quality management standards. The results of such accreditation
should aect the funding of institutions, salaries of their employees,
promotion of sta, and even the decision on the further operation of a specic
correctional institution that received a low rating score when assessing
the quality of work with convicts, respect for human rights and freedoms.
In other countries, purely state control over the activities of correctional
institutions was abandoned, independent non-state accreditation centers
were created instead, for example, the American Association of Correctional
Institutions (Kochergan; Danovsky, 2023).
In addition, not only penitentiary institutions, but also services that
carry out alternative types of punishments should be in the eld of public
control. This type of control cannot be reduced to the activities of the existing
public monitoring commissions, its circle of subjects should be much wider
at the expense of representatives of human rights organizations, academic
circles, religious associations and charitable foundations, which will be an
important prerequisite for the prevention of ill-treatment and torture.
Reforming the criminal justice system of Ukraine in a European way
consists primarily in increasing the role of public organizations in the
process of creating appropriate conditions for serving punishment,
conducting educational activities, ensuring compliance with human rights
and freedoms, promoting the social adaptation of citizens after release, as
well as preventing them from committing new crimes (Tereshchuk, 2018).
Increasing the eciency of the monitoring commissions - institutions
that were formed in accordance with the Resolution of the Cabinet of
Ministers «On the approval of provisions on monitoring commissions and
boards of trustees at special educational institutions» (Resolution Of The
Cabinet Of Ministers Of Ukraine No. 429, 2004) is one of the important
conditions for achieving the specied tasks.
They are responsible for organizing public control over the observance
of the rights and legitimate interests of convicts and persons released from
serving their sentence; educational work with persons released early from
serving a sentence; monitoring the behavior of persons during the unserved
part of the sentence; providing assistance in the full resocialization of those
released from serving their sentence.
212
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
Despite the supposedly democratic approaches to the normative
consolidation of public participation in the activities of criminal enforcement
institutions in the form of the functioning of observation councils, their
activities both in Ukraine and abroad are subject to sharp criticism
by national and international human rights and public organizations.
Criticism concerns the impossibility of inuencing the administration of
penal institutions in case of violation of the rights of convicts, the lack of
real opportunities to help released persons and the organization of control
over their behavior. In addition, due to the relatively short existence of this
institute, there are many organizational and legal problems that arise in the
process of interaction of commissions with bodies and institutions of the
criminal enforcement system (Tereshchuk, 2018).
An analysis of the contents of the Regulations on Observed Commissions,
approved by the Resolution of the Cabinet of Ministers of Ukraine No 429
dated 01.04.2004, proved that the specied public control is formal and
does not relate to essential aspects of criminal enforcement activities,
in particular, issues related to the use of physical force, special means,
straitjackets and weapons to convicts deprived of their liberty (Resolution
Of The Cabinet Of Ministers Of Ukraine No 429, 2004), and most of the
provisions of the Regulation do not correspond to the content of those
changes and additions made to the Criminal Code of Ukraine, in particular,
those related to reducing the conditions of serving sentences in the form of
deprivation of liberty to European standards, as well as with the relevant
articles of the Law of Ukraine «On the National Security of Ukraine» (On
The National Security Of Ukraine., 2018).
The importance of amending the legal framework and substantive
elements of public control in the eld of execution of punishments is also
due to the fact that in the current Criminal and Executive Code of Ukraine, if
based on the requirements of Art. 25 of the specied code, this form of activity
of public organizations is essentially reduced to its two types: a) providing
assistance to bodies and the institution of execution of punishments in the
correction of convicts and carrying out social and educational work (Part
1 of Article 25 of the Criminal Procedure Code of Ukraine); b) exercise of
control by the only legitimate body – observation commissions (Part 2 of
Article 25 of the Criminal Code of Ukraine) (Criminal and Executive Code
of Ukraine, 2001).
As individual scientists emphasize, neither observation commissions
nor other public associations can, for these reasons, properly implement in
their practical activities the following principles of civil control in Art. 4 of
this Law, as:
1. clear delineation of the functions and powers of the political
leadership in the sphere of execution of punishments of Ukraine;
213
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
2. interaction and responsibility of state authorities and bodies
managing the sphere of punishments for the implementation of
state policy in terms of strengthening legality and public order for
timely and comprehensive material and nancial support of bodies
and institutions for the implementation of punishments for the
implementation of the functions assigned to them;
3. transparency of expenses for the maintenance of bodies and
institutions for the execution of punishments;
4. openness to the public of information about the activities of the
State Criminal Enforcement Service of Ukraine, which does not
constitute a state secret, taking into account the specics of state
law enforcement bodies dened by law (responsibility of ocials
for the timeliness, completeness and reliability of the information
provided, and response to citizens’ appeals , public organizations,
media appearances (Kolb and Makhnitskyi, 2019).
There is no doubt that the control over the observance of the rights of
convicts when their legal status changes should be the subject of public
attention. At the same time, practice shows that approval of decisions and
submissions of institution administrations to courts regarding convicts
with observation commissions in most cases takes place formally. In our
opinion, the mandatory approval of resolutions and submissions of the
administration of the correctional colony with the observation commission,
which change the conditions of detention of convicts, should be carried
out only in the event of an increase in the amount of established legal
restrictions and changes to stricter conditions of detention.
Given the need to improve the organization of public control over the
observance of the rights, basic freedoms and legitimate interests of convicts
and persons released from serving a sentence, assistance to bodies and
institutions for the execution of punishments in ensuring the process
of correction of convicts and creating appropriate conditions for their
detention, as well as assistance in providing eective assistance in social
adaptation to persons released from serving a sentence, on 25.11.2022
the Cabinet of Ministers of Ukraine approved Resolution No 1314 «On
Amendments to the Regulation on Monitoring Commissions (Resolution
The Cabinet Of Ministers Of Ukraine No. 1314, 2022).
The main tasks of observation commissions are determined by
the Regulation on observation commissions: the organization and
implementation of public control over the observance of the rights,
fundamental freedoms and interests of convicts during execution of criminal
sentences in institutions of execution of sentences; carrying out regular
visits to penal institutions for the purpose of monitoring and conducting
inspections of the state of compliance with the rights, fundamental freedoms
214
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
and interests of convicts during the execution of criminal sentences in penal
institutions (during the period of martial law, the monitoring commission
may decide to stop visits to penal institutions).
Providing assistance in social adaptation to persons who have served
a sentence of restriction of liberty or deprivation of liberty for a certain
period, as well as those released from further serving the specied types
of punishments on the grounds provided for by law; assistance to subjects
of social patronage in the implementation of a complex of legal, economic,
organizational, psychological, social and other measures, in particular, the
provision of services aimed at the social adaptation of released persons,
and probation authorities in the implementation of a complex of measures
aimed at the correction of social probation subjects behavior or its individual
manifestations.
The formation of socially favorable changes in their personality;
assistance to bodies and institutions for the execution of punishments in
the creation of appropriate conditions for the detention of convicts, their
material, household and medical and sanitary support, the implementation
of health and preventive measures, the preparation of convicts for
release, the involvement of public and charitable organizations, executive
authorities, local bodies in such activities self-government, enterprises,
institutions and organizations regardless of the form of ownership and
citizens; participation in the preparation of convicts for release, as well as
assistance in determining the place of residence, etc. (Resolution of the
Cabinet of Ministers of Ukraine No. 1314, 2022).
Currently, the activity of the observation commissions, although
relegated to the background in connection with the military actions on
the territory of Ukraine, still continues to be criticized by some human
rights and public organizations, primarily for the existing formalism,
the impossibility of inuencing the administration of institutions for the
execution of punishments in the event of a violation the rights of convicts,
lack of real opportunities to help released persons and organize control
over their behavior. For example, monitoring commissions are entrusted
with the functions of approving decisions of the administrations of penal
institutions regarding changes in the legal status of convicts (parole, early
release, replacement of the unserved part of the sentence with a lighter one,
exemption from serving the sentence of pregnant women and women with
children under the age of three years, changing the conditions of detention
of convicts, etc.).
215
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
Conclusions
The further development of public control over the observance of the
rights of convicts in Ukraine should be based on the principle of independence
of the subjects of such control. Based on the idea of demarcating spheres of
inuence, it is advisable to observe a clear separation of the functions of the
state and society in places of execution of punishments.
Standardization in the relevant legislation needs to reect the fact that
the main functional duty of the administration of bodies and institutions for
the execution of punishments is exclusively the execution of punishments,
that is, the exact and consistent execution of court sentences, the isolation
of convicts or the application of other restrictions to them. The function
of control over the observance of rights, exercise of moral and educational
inuence, educational work, placement of the released, etc., must rely on
society.
Given the lack of an unambiguous approach to dening the content
of public control in science and in normative legal acts, the normative
consolidation of this concept would make it possible to avoid a number
of inconsistencies in the specied eld of legal relations. Ensuring the
openness and transparency of the activities of penitentiary bodies and
institutions cannot in any case be the goal of public control, and the
approach to the interpretation of «public control» should not be equated
with such concepts as «help» and «patronage».
Today, Ukraine is on the way to reforming criminal law in accordance
with the best international practices. The principle of openness of penal
institutions to society, as the main principle of penitentiary rules, must be
reected in Ukrainian legislation, since the legally established possibility of
the public to take a real part in the activities of penal institutions, as well as
in the correction and resocialization of convicts is one of the main means of
implementing the ideas and traditions of a democratic civil society.
For this purpose, rst of all, it is necessary to overcome such negative
phenomena as: the formalism of public control by observation councils
on the observance of the rights of convicts; renewal; granting the right to
exercise public control to other subjects of public control, in particular mass
media; active borrowing of progressive experience of foreign countries in
the specied eld.
Bibliographic References
BARABASH, Yuriy; PAVSHUK, Kateryna. 2010. “The essence of public control
in Ukraine”. In: Law Journal of Donetsk University. Vol. 1, No. 23. pp.
168-175.
216
Pavlo Harasym, Roma Sybirna, Volodymyr Ortynskyi, Roman Shai y Mariia Maskovita
Prospects for improving public control over the observance of the rights of convicts
KOCHERGAN, Paul; DANOVSKY, Andrew. 2018. Public control over the
observance of the rights of convicts during the execution of criminal
penalties and ways to improve it. Available online. In: https://minjust.
gov.ua/m/str_30687. Consultation date: 20/02/2023.
KOLB, Oleksandr; MAKHNITSKYY, Oleg. 2019. “Content of public control in
the sphere of execution of punishments of Ukraine” In: Bulletin of the
Penitentiary Association of Ukraine. Vol. 9, No. 3, pp. 223-230.
LAW OF UKRAINE. 2001. Criminal Code of the Republic of Ukraine (English
Version). Available online. In: https://sherloc.unodc.org/cld/uploads/
res/document/ukr/2001/criminal-code-of-the-republic-of-ukraine-
en_html/Ukraine_Criminal_Code_as_of_2010_EN.pdf. Consultation
date: 20/02/2023.
LAW OF UKRAINE. 2005. On State Criminal-Executive Service of Ukraine.
Date of entry into force: July 20, № 2713-IV.
LAW OF UKRAINE. 2018. On the National Security of Ukraine. No. 2469-
VIII. Available online. In: https://zakon.rada.gov.ua/laws/show/2469-
19#Text. Consultation date: 20/02/2023.
LAW OF UKRAINE. 2022. CRIMINAL-EXECUTIVE CODE OF UKRAINE.
No. 1129-IV Available online. In: https://zakon.rada.gov.ua/laws/
show/1129-15#Text. Consultation date: 20/02/2023.
MUKSHYMENKO, Alla. 2010. “Public control over the observance of human
rights during the execution of criminal penalties” In: Viche. Vol. 6. pp.
12-14.
RESOLUTION OF THE CABINET OF MINISTERS OF UKRAINE. 2004. On
Approval of Regulations on Supervisory Commissions and Boards of
Trustees at Special Educational Institutions. No. 429. Available online.
In: https://zakon.rada.gov.ua/laws/show/429-2004-%D0%BF#Text.
Consultation date: 20/02/2023.
RESOLUTION OF THE CABINET OF MINISTERS OF UKRAINE. 2022. On
Amendments to The Regulations on Supervisory Commissions. No. 1314.
Available online. In: https://zakon.rada.gov.ua/laws/show/1314-2022-
%D0%BF#n10. Consultation date: 20/02/2023.
TERESHCHUK, Oleksandr. 2015. “Peculiarities of delimitation of public
control among other types of control over law enforcement activities”
In: Bulletin of Chernivtsi Faculty of the National University “Odessa Law
Academy”. Vol. 4. pp. 176-188.
217
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 203-217
TERESHCHUK, Oleksandr. 2018. Administrative and legal principles of
public control over law enforcement in Ukraine: theory and practice.
Monography. Kiev, Ukraine.
VITVITCKYY, Sergiy. 2013. “Institute of Civil Control in Ukraine: concept,
essence, development trends” In: Scientic Bulletin of Dnipropetrovsk
State University of Internal Aairs. Vol. 1, pp. 40-47.
ZAKHAROV, Evgen. 2009. Public Control and Human Rights. Available online.
In: https://helsinki.org.ua/2009/12/hromadskyj-kontrol-i-prava-
lyudyny. Consultation date: 20/02/2023.
ZUBAREV, Sergei. 2006. Theory and practice of monitoring the activities of the
personnel of the penitentiary system. Monograph. Moscow, Russia.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en julio de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 78
