Information regarding the regulatory resolution of the Constitutional Court
(№ 37 of 6 December 2023)
The Constitutional Court considered a citizen's appeal concerning the constitutionality of paragraph three of Article 428 of the Criminal Code (hereinafter – the CC) and subparagraph 2) of paragraph two of Article 130 of the Penal Enforcement Code (hereinafter – the Penal Enforcement Code).
According to the materials, by the verdict of the city court the subject of the appeal was found guilty under part three of Article 428 of the Criminal Code for participation in group disobedience to the lawful demands of the administration of the institution ensuring isolation from society, associated with intentional self-injury.
The citizen believed that self-harm was a way of expressing his opinion, as well as a form of protest against unlawful actions of the administration of the penal institution and, therefore, the punishment was unconstitutional.
He also challenged the rule of the Penal Enforcement Code that threatening, insulting or disobeying representatives of the administration of the institution, coupled with ‘self-harm with the aim of violating the regime of serving the sentence is one of the types of malicious violation of the order of serving the sentence’.
The Constitutional Court emphasised the importance of preserving the legal positions of the Constitutional Council. With regard to the current provisions of the Criminal Code, the CC noted that the legal norm lacks objective criteria to accurately determine the direction of the perpetrator's intent, which is crucial for the correct qualification of the offence. If self-harm is caused by unlawful demands of the administration, there is no offence. But if it is aimed at violation of the order of serving the sentence, it should entail responsibility.
With regard to the provision of the Penal Enforcement Code, the Constitutional Court emphasised that the contested norm linked self-harm to a specific purpose - violation of the regime of serving the sentence, i.e. it clearly defined the orientation of the perpetrator's intention to evade the obligations provided for by the law. In this case, the Constitutional Court did not see any contradiction with the Constitution.
With regard to the norm of the Criminal Code, the Constitutional Court ruled to recognise it as constitutional in its interpretation, the meaning of which is that criminal prosecution for participation in group disobedience involving self-harm is permissible if its purpose was disobedience to the lawful demands of the administration of the penitentiary system and violation of the established order (regime) of serving the sentence.