AD ALTA
JOURNAL OF INTERDISCIPLINARY RESEARCH
Universal (civilizational) principles of law are directly
determined by the achieved level of human development and
should act as a universal criterion for the formation of national
legal systems. Legal principles are based on universal values.
They are enshrined in international legal instruments and partly
in the domestic legislation of individual states (Tsvik, 2009).
International standards on the rights and freedoms of convicts
contain both norms-principles and norms-recommendations.
Norms-principles do not assume any deviations from them both
in the legislation and in the activity of bodies and establishments
of execution of punishments. This conclusion follows from
Article 30 of the Universal Declaration of Human Rights and
Article 5 of the International Covenant on Civil and Political
Rights. Norms-principles are formulated in various international
legal acts and cover all fundamental rights and freedoms of man
and citizen. Norms-recommendations are not mandatory,
although they are subject to maximum consideration during the
development of new legislation (Shmarov, 1990).
In connection with the above, it is of both theoretical and
practical interest to distinguish between norms-principles and
norms-recommendations regarding the rights and freedoms of
persons sentenced to imprisonment. Such a distinction, in our
view, should be based on the fundamental human rights and
freedoms proclaimed in the Universal Declaration of Human
Rights
United Nations, 1948
, the Standard Minimum Rules for
the Treatment of Prisoners (Clifford et al., 1972), and the
International Covenant on Civil and political rights (Joseph,
2013), the International Covenant on Economic, Social and
Cultural Rights (UNICEF, 1966), the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (
Burgers,
1988), European Penitentiary Rules
(
Council of Europe,
2006).
These and some other acts proclaim the basic provisions on
human rights (including convicts) and identify the most priority
of them. The norms and principles contained in them are binding
on states that have ratified these international instruments.
On the basis of the mentonied above and some other
international legal documents on the treatment of convicts in Art.
5 of the Criminal Procedure Code of Ukraine formulated the
principles of criminal-executive legislation, execution, and
serving of sentences.
The principles formulated in the above article of the CEC of
Ukraine provide an opportunity to understand that the system in
the activities of penitentiary bodies and institutions objectively
provides for its reflection through legal means, which best
corresponds to the essence of the ongoing processes of execution
in the practice of penitentiary staff systems (Stepaniuk, 2002).
Given the importance of the principles set out in Art. 5 of the
Criminal Procedure Code of Ukraine, we focus on the very
concept of the category “principle”.
Thus, the principles of criminal-executive legislation are the
main provisions, guiding ideas that express the views of the state
and society and reflect the general direction and the most
significant features of the Ukrainian state policy in the field of
execution have a doctrinal expression and normative form of
consolidation (Dzhuzha, 2002).
The peculiarity of the principles of the criminal-executive law,
as well as other branches of law, is that they do not involve any
exceptions to them. If any fundamental provision provides for
exceptions to it, it ceases to be a principle and is reduced to the
role of a simple rule from which conclusions can and should be
drawn.
Consolidation of principles in criminal-executive legislation is
the result of the development of the criminal-executive policy of
our state, which reflects the achievements of national
penitentiary science and experience of legal regulation of
execution and serving of criminal punishments in foreign
countries (Dzhuzha, 2001).
Article 5 of the CEC of Ukraine lists the principles on which the
criminal-executive legislation of Ukraine is based, but does not
disclose the essence of each of them. Therefore, the substantive
side of each of them is revealed, based on many years of practice
of their application and scientific analysis of terms used in
legislation.
Due to the principles of criminal-executive legislation, internal
coherence, and interconnection of legal norms and legal
institutions of this branch, the purposefulness of law-
enforcement decisions and practice of execution and serving of
punishment is provided. Finally, the system of principles of
criminal-executive law reflects the basic provisions of the
treatment of convicts, which are enshrined in the relevant
international instruments (Shmarov, 1990).
The principle of respect for human rights and freedoms is
enshrined, in particular, in Art. 1 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(obligation to respect human rights) (
Council of Europe, 1950
);
Art. 2 of the International Covenant on Civil and Political Rights
(each State party to this Covenant undertakes to respect and to
ensure to all persons within its territory and jurisdiction the
rights recognized in the present Covenant) (Joseph and Castan,
2013); The final act of the meeting on security and cooperation
in Europe of August 1, 1975 (in Chapter VII «Respect for human
rights and fundamental freedoms, including freedom of speech,
conscience, religion, and belief») (OSCE, 1975) and others.
It should be noted that these international instruments also
specify the general rights and freedoms of convicted persons that
must be respected and ensured in the execution of criminal
sentences and in the treatment of such persons: everyone has the
right to life, liberty, and security of person; no one shall be
subjected to torture or to cruel, inhuman or degrading treatment
or punishment; all persons deprived of their liberty have the right
to humane treatment and respect for the inherent dignity of the
human person. In the future, the principle of respect for human
rights and freedoms, as noted earlier, was enshrined in IST,
which means standards adopted at the international level as
norms, principles, and recommendations in the field of execution
of sentences and activities of penitentiary bodies and institutions
(Golin and Stepaniuk, 2011). It should be emphasized that,
despite the existence of standards for the treatment of convicts,
the current criminal-executive legislation has not yet enshrined
the term «treatment of convicts». This has been repeatedly
pointed out by scholars of the criminal-executive law, in
particular T. V. Rudnyk, who proposed to understand this term
as a way or nature of applying to convicts various measures of
influence, treatment in accordance with generally accepted rules
(Rudnyk, 2010).
Without going into discussions, let`s just say that this problem
needs to be addressed. In addition, the content of the concept of
"treatment of convicts" in national law should be defined. In our
opinion, the enshrinement in law of this concept will contribute,
in particular, to the indisputable respect for human rights and
freedoms during the execution of sentences, as it will determine
the limits of permissible behavior on the part of the penitentiary
administration.
The IST developed and approved by the international
community include Minimum standard rules for the treatment of
prisoners (Clifford et al., 1972); Declaration on the Protection of
All Persons from Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (
United Nations, 1975
);
Principles of medical ethics concerning the role of health
workers, especially doctors, in protecting prisoners or detainees
from torture and other cruel, inhuman or degrading treatment or
punishment (
United Nations, 1982
); Basic principles of
treatment of prisoners (
United Nations, 1990a
); Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (
Burgers, 1988)
; Code of Principles
for the Protection of All Persons under Any Form of Detention
or Imprisonment (
United Nations, 1988)
; European penitentiary
(prison) rules (
Council of Europe, 2006)
; Tokyo rules (
United
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