Deputy Minister of Justice Olena Vysotska: "Period for which convict concludes contract with Armed Forces cannot be less than end of martial law. This does not depend on served sentence."

Speaking about how this process is going, my interlocutor, Deputy Minister of Justice Olha Vysotska, notes that they have been working on this project for about a year, so they have tried to calculate all possible risks and mitigate them as much as possible when making changes to criminal law.

In an interview with Censor.NET, she also spoke about which categories of convicts have the right to sign a contract with the Armed Forces, what restrictions they have, and why military unit commanders who initially did not approve of the idea began to fight for former prisoners. 

THE LAW PROVIDES FOR RESTRICTIONS ON LEAVE FOR SUCH A SOLDIER

- Olena, how many of the convicts have applied for mobilization?

- We have received 5,700 applications since the law came into force, and 3,390 people have already been sentenced by the courts and have left the institutions where they were serving their sentences.

- Are we talking about early parole?

- Yes. We thought for a long time about how to give the convict a legal guarantee, determine his status, and at the same time take into account the risks to the victims, the state, and his future comrades-in-arms. It was difficult because other countries do not have such experience and such a legal structure with reference to the war, so we proposed options and discussed them with human rights activists, People's Deputies, and the military. The norms that were developed as a result of these discussions are laid down in the law. This is an early parole. 

In general, the institute of early parole exists in all countries, but it always depends on the article under which the person was convicted and the length of the sentence already served. One of the prerequisites is that the person has been on the right track. This is a classic early parole. We also added an article to the Criminal Code that introduced a new mechanism for early parole, subject to the conclusion of a contract with the Armed Forces. In this case, the period for which the convicted person concludes a contract with the Armed Forces cannot be less than the end of martial law. This does not depend on the sentence served. 

In addition, the law provides for restrictions on such a soldier's leave. If it's not for health reasons, not because of an injury, then you can't take a leave. This is because in this case, we are not talking about a person's release. He is legally free but limited by the terms of his contract with the Armed Forces.

During the discussion of the idea of mobilizing convicts, the military had different attitudes. Some were cautious, others generally believed that it was not appropriate, it was additional work for commanders, and they had other things to do. We saw that the convicts wanted to fight for the country. So we made a structure for such people. But no one is forcing anyone or creating conditions for convicts to "flow" to the military formations en masse.

- In other words, not in the way the Russians did when they took convicts en masse to the front?

- No. They took convicts from prisons without any procedures, without status. We worked with such people as prisoners, so we understood how it was. So when foreign and Ukrainian journalists ask us what the difference is between what we do and Russia, it is so obvious to me that I don't understand why we are offended by this comparison in general. 

It wasn't the military who came and said: we need people, take them wherever you want. No, it was the convicts who wrote statements and letters like this from the first day of the full-scale invasion: "Why am I serving time here? I can be useful at the front." There is no better re-socialization for convicts than helping the state in its difficult situation. After all, the essence of serving a sentence is that after you have done something bad, you have mend your way, rethought, apologized, and compensated for the damage. And you have to repay not only the victims but also society. For example, at the level of a particular community. We have seen how the probation institute works in European countries. This is the most effective way to not give up on a person but to give them the opportunity to go through rehabilitation, recognize their problems and treat them. And instead of serving time in prison, they clean up a park, fix up some local infrastructure, etc. And the environment sees that the punishment is indeed irreversible, but also what this particular convict is doing for the community.

Among the convicts, there are those for whom the best thing is to prove that they are part of a healthy Ukrainian society and they are ready to defend the country. Although Russia initially provoked the convicts to riot, to disobey, to destabilize the situation from within the country. This is always a distraction for the law enforcement system. But they didn't accept it. The situation remained under control. And then there was a flood of statements where people wrote that they wanted to defend the country.

- Do they realize that a positional war can last ten years or more? And they have, say, three or five years left to serve out.

- What about when you have a month left in your sentence? And a prisoner who wants to return home as a normal person in a military uniform, not from prison. 

- If he is released from prison in a month, can't he mobilize himself?

- Previously, there was a rule that ex-convicts were "invisible" to the TCR. This is unfair to people who have not been in prison. Why should a young person who is studying, working, and has plans for life, have to register with the TCR and be searched for, while someone who has committed a crime and served time has immunity? This was the Soviet norm. And when a new law on mobilisation was being drafted, we proposed to eliminate it.

Therefore, a person who is released from prison can immediately mobilize. But the point is that there is no point in waiting if there are those among the convicts who want to fight right now.

Commanders of military units come to prisons, tell about their units, and talk to those who have expressed a desire to serve. In turn, the convicts can choose a unit.

- How do you determine the brigades and commanders who can come? Is there a connection to the territory? For example, a brigade was formed in Zakarpattia, so former convicts who served their sentences in the region were sent there. 

-  There is no strict attachment of any one brigade or military unit to each penal institution. Different units can get into the same one and talk about themselves. But this wave of motivated convicts is coming to an end. Those who wanted to, who waited for a year for the law, have submitted their applications. This process will not move forward in such a progression and it is unlikely that we will have a thousand and a half applications every month. Probably, there will be either new people who will receive sentences and decide to follow this path or those who have not yet done so and are waiting to see what will happen to those who went to serve. By the way, there are those among the convicts who want to serve, but their relatives - mothers or wives - are against it, and they listen to them. They say that they may go to serve later. But there are not many such people. And the commanders who have already recruited motivated people want more. I explained that we cannot start campaigning too aggressively among the convicts. We have to campaign among those who have already expressed a desire.

- And this should probably not be campaigning, but explanations. So that people clearly understand where they are going and what they need to do. How does all this happen?

- First, there are general presentation groups, when the commander or his assistants talk about the unit. And then individual interviews are mandatory. The commander may not take this or that person.

- Does a military unit commander have to apply to the Ministry of Justice to go to prison?

- No, the Ministry of Defence and the General Staff determine the units. But these documents are restricted, so you won't get a clear list of brigades or procedures.

- When it comes to the question of early parole of a convict, the administration of a penal institution usually takes into account his behavior. And if a prisoner has expressed a desire to serve in the Armed Forces, is his behavior also taken into account? Are there any corruption schemes possible when releasing a prisoner on such grounds as service in the Armed Forces? 

- They take into account both the behavior and the article under which the person was convicted. In fact, everyone was afraid to give powers to the administrations of penitentiary institutions, saying that it was a risk of corruption. But I'm ready to swear black and blue that we had no other motivation than to do a good deed - to help the Armed Forces and respond to the request of the convicts, so there are no schemes involved. But we can't rule out the possibility that the human factor will work against the system one day. The risk of corruption may be at the stage of decision-making in court, or by the administration, or by the commander. In the future, there may be some problems with service, handling of weapons, etc. But let's not speculate about what could theoretically happen somewhere and when, but look at the whole picture. After all, even among people who have not been convicted, there are also those who violate the statute and run away from units. We cannot look at just these five thousand and think that something bad will happen. We tried to foresee the risks and mitigate them procedurally. 

- Can a commander refuse a person who wants to join his unit?

- Yes, he can. Then we are waiting for another commander to whom the person will be suitable in terms of his or her competence. In addition, during a meeting of the commission at the administration, which includes both a representative of the TCR and a representative of the military unit, the person's behavior is discussed. It is important for the commander to learn this from us in order to take into account possible risks. 

- Are there any court rejections?

- There are, but they are not massive.

- What are the reasons?

- Each case is different. The court has to weigh everything. I just can't imagine how to make a decision on early parole without considering what the convicted person has done in the past. The shadow of the crime falls on the decision. Sometimes more, sometimes less. The person in court can also behave differently. Some people understand how to present themselves and what reformation means. And some people live under the illusion that they will be released anyway, because their commanders, friends, lawyers, or someone else said so. A judge may decide that a person is not ready for such a life and refuse to release them. 

- For which crimes do those convicted most often file and receive favorable decisions?

- We did not analyze this because it does not matter to us, because there are legal restrictions. When a person who has been convicted under an article that falls under these restrictions submits an application, this is immediately explained to the person. 

- Are we talking about heavy and especially grave crimes?

- We have moved away from the construction "heavy and especially grave". According to statistics, this is the main part of the prison population, and then no one would have gone to the front. 

- Then explain who exactly cannot sign a contract with the Armed Forces. What crimes are subject to the restrictions?

- The first group is crimes against the foundations of national security. The second is violent, i.e., murders of two or more people, murders with rape, sexual crimes, murders with extreme atrocity. Why do I say that we are moving away from the "heavy and especially grave" construction? Because the amount of losses in the case of, for example, theft can also be classified in this category. Or a traffic accident, depending on the consequences.  There are exceptions for road accidents, but only when it comes to the death of two or more people. 

- Can a person who has committed a negligent homicide file a complaint?

- Yes.

- Why did they restrict corrupt officials? Let them do something useful, otherwise we'll just keep paying for them with our taxes for years. 

- When we were preparing this law, we had no restrictions, because it is not a matter of will, but of very hard work. We believe that if there is a person who has decided that he wants to serve, who has understood all the risks, he will definitely be more useful at the front than if he is kept in prison, which would be a cost to the budget. But everyone saw the hidden meaning in any idea. So when the legislators included violent crimes in the restrictions from the point of view of the victims' interests, we understood it. Because, unfortunately, victims cannot be given as much attention as they deserve, both in the criminal process and afterwards. Any state always does not finalize and there can always be a claim of injustice from victims. Therefore, I very much welcome initiatives aimed at somehow protecting this category of people and paying attention to them. And they are looking for this justice from the state. And we always work around the person of the criminal, his rights. He has three lawyers, he has a decision of the ECtHR. I see this as an injustice. So, of course, if they are not ready now to accept that this is work, not freedom, that this is so much fairer than being in a warm, kind prison, we went for it. But this is a debatable issue. 

- Violent crimes are clear, but what about top corrupt officials?

- During the consideration of the draft law in the relevant committee, one of the People`s Deputies introduced amendments to ensure that corrupt officials who held a particularly responsible position would not be recruited to the Armed Forces. Therefore, this article is also listed in the exceptions.

"IN TERMS OF RIGHTS AND OBLIGATIONS, FORMER CONVICTS DO NOT DIFFER FROM OTHER MILITARY PERSONNEL, EXCEPT FOR THE TERMS OF THE CONTRACT"

- Will financial support for former prisoners be the same as for all other military personnel?

- Yes.

- When the law was being adopted, the minister said in his comments that assault groups were being formed. You said that a person can choose a unit. What about the military specialty? Can they be in aerial reconnaissance, artillery, if they want, or just riflemen?

- There are no restrictions in this regard.

- It is known from open sources that these will be separate units. Will these be battalions within existing brigades or something smaller - platoons, companies?

- The Ministry of Defence had the authority to determine which units these would be, and they did. I cannot comment on this.

- You said that this category of servicemen will not have leave. What about rotations?

- The General Staff is responsible for this. The restrictions in the law are defined exclusively in relation to holidays. It was a fair warning so that the person who committed the crime would not come to their city on holiday and the victims would see it.

- Under this law, can soldiers convicted of prolonged AWOL or failing to comply with orders to return to the front be released on early parole? 

- This rule was a restriction. To avoid working with people for the second time who did not understand what military service was. But then it was removed and the military were allowed to apply. The commanders themselves said that it happens that a soldier is tired, psyched out, but such people should be given a chance and they were ready to work with them. When this issue was discussed, it was said that when making a decision, the commander would know what the reasons for the violation of the charter were. Because cases can be different and it is better to consider them individually. 

- If, at the stage of training a former convict, the commander realizes that the person is not ready to obey orders and there are serious discipline problems, what should be done? After all, on the front line, it is important to have those who will lend a shoulder, who can be trusted and who are even ready to die to save your life. 

- This can happen to anyone, not just ex-convicts.

- Of course. But in this case, can the commander say that he does not want this person to serve in his unit?

- What do you mean he doesn't want to? Commanders are included in the decision-making process. They fight for them, motivate them, convince them to go to their units. That's why you can't just say "I don't want to" later.

In addition, the former convict is also liable for breaching the terms of the contract. If he violated them and the commander officially declares this, criminal proceedings are opened, and the person can return to prison with a new sentence.

We cannot legally treat them as convicts. They are free people, but their relations with each subject in this process are regulated. With the military unit - by contract.

- What safeguards are in place to prevent them from running away?

- Criminal liability for breach of contract is the only safeguard. We understood that there was such a risk, and therefore all the convicts who decided to continue serving in the AFU were warned of the consequences.

- Are there any kingpins and "criminal lords" willing to serve?

- There have been no statements from such people so far.

- Can women apply for and sign contracts with the Armed Forces?

- They can, but there have been no such statements so far.

- You said that there are currently 5,700 applications and there may be no more applicants. And in a commentary to the Associated Press, you said that about 27,000 people are eligible to serve in the Armed Forces. What did you mean by that?

-  This is the total number of convicts. We are talking about 27 thousand people who have certain responsibilities to the state. And now, when the issue of repulsing armed aggression is relevant, how can this be used in favor of our victory? And not just divide them: it's your job - you fight, and we will rehabilitate people. Well, what better way to rehabilitate them than to win? 

- Are those who have been released still undergoing training or are there already some who are fighting?

- Most of them are still studying. But among these people there are also those who have military experience, and events just happened that led them to prison. For example, a man went on vacation, got into a fight with a guy at a disco, and stabbed him. The latter got treatment and fled to Poland, and now this man has written an application to go to war.

So there are people who have enough experience and skills to go to war. And we are already receiving feedback from the military. A few weeks after the start of the project, we received information that a Russian had been captured with the participation of one of the ex-convicts. However, I received a lot of hate again. God, what kind of training is there if they take people prisoner in two weeks?" (smiles - author).

In fact, we have been working on this project for almost a year. We took into account all suggestions, ideas and criticisms. Therefore, I can only say that the rights and obligations of ex-convicts are no different from those of other servicemen, except for the terms of the contract.

- If it happens that a person panics at the front and says he wants to go back to prison, what will you do?

- You can't say, "Take me back". You can only come back if you breach the terms of the contract and a court decision. I hope it won't come to that.

This is a war, and no one can leave the service because they have changed their mind. Therefore, when you make a choice and write an application, you need to be aware of this.

Tetiana Bodnia, Censor.NET