House of Representatives: No reasons to decriminalize Article 411

Liudmila Mikhalkova, Chairperson of the Standing Commission on legislation of the House of Representatives of the National Assembly replied to Viasna’s letter concerning possible abolition of Article 411 of the Criminal Code.

The petition was sent by Ales Bialiatski on April 3 to demand the abolition of Article 411 that penalizes “deliberate disobedience to the correctional institution administration”.

The Human Rights Center “Viasna” believes that Article 411 of the Criminal Code is contrary to paragraph 7 of Article 14 of the International Covenant on Civil and Political Rights, which states that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”.

The experts drew attention to the fact that Article 411 of the Criminal Code is often used to prosecute and increase pressure on political prisoners. Suffice it to recall the case of political prisoner Mikalai Dziadok.

The appeal also emphasized the fact that violations listed in Article 411 are penalized by non-judicial means by officials in prisons and penal colonies – officers of the Interior Ministry. This gives rise to the practice of arbitrary and selective application of Article 411 – for example, against disloyal convict or to pursue the political motives of the authorities.

Ms. Mikhalkova says that this is not a big problem citing the example of Uzbekistan, Kazakhstan and Ukraine, where there are similar articles.

“The procedure for recognizing a person who maliciously violates the established order of serving the sentence of imprisonment is strictly regulated by law (Article 117 of the Criminal Execution Code). When deciding on the imposition of criminal liability under Art. 411 of the Criminal Code, the preliminary investigation body, the prosecutor and the court must verify the legality of previously imposed disciplinary measures. As a result of the above, one cannot agree with your evidence that Article 411 of the Criminal Code gives the administration of correctional institutions the opportunity to abuse their official position in terms of arbitrary penalizing minor offenses. As with all other types of crimes, assessment of evidence against the person and the judgment in the case is determined only by the court.”

In their appeal, the human rights activists pointed out that the need for the abolition of Article 411 of the Criminal Code is suggested by disciplinary prejudice, which says that the action becomes a crime if it is committed within one year after the imposition of punishment for the same offense. The experts emphasize that the crime is not the sum of different offenses. However, punishment under Article 411 is imposed for the offenses already penalized under disciplinary procedures.

The human rights activists stress that in this case the deprivation of liberty (which is the only form of punishment provided for in Article 411) is contrary to the principles of criminal law and criminal responsibility – justice and humanism.

Liudmila Mikhalkova is convinced that the existence of the only type of punishment under Article 411 of the Criminal Code – imprisonment – is not contrary to the principles of justice and humanism and is due to the commission of crimes in prison.

“Therefore,” said Ms. Mikhalkova, “an indication to the fact that Article 411 of the Criminal Code is the only norm of the criminal law with disciplinary prejudice cannot be considered as proof that such a rule is not needed in the Criminal Code.”

The MP concludes that the exclusion of Article 411 from the Criminal Code “will lead to action consisting in willful disobedience to the requirements of the administration of the correctional institution, which can help create the conditions for convicted persons committing other crimes, in particular, in groups, cause other negative tendencies that worsen the state of the operational situation and the overall crime situation in the penitentiary system... In view of the above, there are no grounds for the decriminalization of Article 411 of the Criminal Code.”

The answer by the representative of the legislative body is commented upon by lawyer Pavel Sapelka:

“Violations of rules of serving punishment provides for a wide range of different kinds of disciplinary actions: from the symbolic ones up to being sent to prison inside the penal colony – cell-type premises (PKT). A prisoner may be transferred to a stricter regime of detention. I do not mention the fact that such violators cannot count on parole or reduction of their sentence under an amnesty. These are the measures used in normal and civilized legal systems.

It is also normal to apply criminal law if the prisoner is terrorizing other inmates or prison administration; organizes group acts of defiance.

In other cases, it is meaningless to imprison for inability or unwillingness to reform under conditions of imprisonment.”