Perspective Chapter: Upholding of Human Rights and Freedoms in the Imposition of Criminal Liability for Persistent Disobedience to the Demands of the Penal Institution’s Administration

Abstract

The authors explore the historical development of provisions pertaining to criminal liability for persistent disobedience to the demands of the penal institution’s administration in Ukraine. The chapter critically analyses the provisions existing in national criminal law in this domain and provides recommendations for its enhancement. The authors analyse the practical application of criminal liability for this offense, outlining typical methods of committing such crimes, perpetrator personality, crime circumstances, and trace patterns. Examining the forensic features of such crimes, the authors identify conditions contributing to persistent disobedience. Building on this analysis, the authors present their perspective on resolving issues related to the need of clearly defining the persistent disobedience criteria and improving criminal correctional legislation through the prism of upholding human rights and freedoms. The chapter also delves into the tactical aspects of investigating this crime category. It has been demonstrated that the current provision in criminal law, establishing liability for persistent disobedience to the demands of the penal institution’s administration, does not adhere to the principle of legal certainty, thereby hindering the realization of the rights and freedoms of a convicted individual. The authors contend that the forensic characterization of these crimes and the description of their investigation process already highlight several factors that infringe upon human rights and freedoms. Typical forms of persistent disobedience include refusal to work and violation of daily routines. These crimes often occur blatantly, leaving typical traces such as: (1) witness testimonies from fellow convicts and penitentiary institution staff and (2) documents typically drawn up by penitentiary institution staff. Reports regarding these crimes typically originate from penitentiary institution representatives, with suspects predominantly interrogated on the penitentiary institution’s premises.

1. Introduction

The administration of justice encompasses not only the accurate evaluation of the committed act in accordance with relevant criminal laws and the fair imposition of punishment but also involves establishing necessary provisions, which should ensure proper conditions for serving or executing the sentence and which should be explicitly outlined in legislation. These provisions should consider the latest scientific advancements, not only in the field of law but also in the broader understanding of humanity. This implies that these provisions must ensure the implementation of human rights for the first and second, as well as for further generations, taking into account society’s present ethical and legal principles. Besides, it is essential to underscore that justice cannot be achieved without adherence to proper criminal procedure principles, which law enforcers employ when holding an individual accountable for a criminal offense. The current laws of Ukraine establish criminal liability for persistent disobedience to the demands of the administration of a penal institution. In the light of the above, the protection of human rights in cases where individuals face criminal liability for persistent disobedience to the demands of the penal institution’s administration has become a pressing issue. Ukrainian law defines penal institutions as detention centres, penitentiary facilities, special correctional institutions, and pre-trial detention centres, as specified by the Criminal Corrections Code of Ukraine (hereinafter referred to as Ukrainian CCC). For contemporary jurisprudence, it is crucial to ensure the observance of these rights throughout the entire period of an individual’s sentence in a penal institution and guarantee their exercise during an investigation into a criminal offense committed by the criminal convict while serving the sentence. Hence, the aim of this research is to delve into the criminal-law and forensic procedure aspects of upholding human rights and freedoms in cases of a convict’s persistent disobedience to the demands of the penal institution’s administration.

Our study aims to analyse the challenges surrounding the upholding of human rights and freedoms in the application of criminal liability for persistent disobedience to the demands of the penal institution’s administration in Ukraine through the lens of current criminal legislation analysis and case law examination. This research will aid law enforcement agencies in correctly interpreting Article 391 of the Ukrainian CC and guide investigators in their investigation tactics.

The authors employ the method of systematic analysis of acts related to persistent disobedience to the demands of the penal institution’s administration. Utilizing systemic-structural and logical methods, the authors examine and analyse the investigator’s conduct during the investigation of these crimes.

Our study draws from both empirical and theoretical materials, examining the statutory provisions regarding persistent disobedience to the demands of the penal institution’s administration and analysing the criminal prosecution practices associated with such acts. The empirical basis of the study encompasses criminal proceedings reviewed by courts, verdicts from courts of various instances, and statistical information provided by the Office of the Prosecutor General of Ukraine and the Ministry of Justice of Ukraine.

2. Criminal-law aspects of upholding human rights and freedoms in cases of a convict’s persistent disobedience to the demands of the administration of a penal institution

The current Criminal Code of Ukraine (hereinafter referred to as the Ukrainian CC) provides for the liability of a person for persistent disobedience to the demands of the penal institution’s administration (Article 391). If a person serving a sentence in the form of restriction of liberty or imprisonment violated the regime of serving the sentence and has been subjected to punishment, in the form of transfer to cell-type premises (solitary confinement) or a stricter regime of serving the sentence, within a year, this person is subject to criminal liability. The legislator has established imprisonment as punishment for such actions, with a term of up to 3 years [1].

Table 1 indicates that within the total crime rate structure, this offense constitutes less than 0.1%.

Years	2023	2022	2021	2020	2019	2018	2017	2016	2015	2014	2013
Total recorded criminal proceedings in the reporting period	475595	362636	321443	360622	444130	487133	523911	592604	565182	529139	563560
Recorded criminal proceedings in the reporting period under Art. 391 of Ukrainian CC	86	65	125	125	134	122	100	86	133	140	176

Table 1.

Rate of crimes under Article 391 of the Ukrainian CC and total crime rate from 2013 to 2023 [2].

When independent Ukraine’s updated criminal legislation was adopted in 2001, this provision was entrenched in the Section ‘Crimes against Justice’ in the Special Part of the Criminal Code of Ukraine [1]. After a new criminal offense category, criminal misdemeanour, has been introduced in 2018, this Section is now titled ‘Criminal Offenses against Justice’.

Before 2001, a similar provision existed in criminal legislation of Ukraine, inherited from the Soviet period, specifically the Criminal Code of the Ukrainian Soviet Socialist Republic of 1960 (hereinafter referred to as the Ukrainian SSR CC). On November 23, 1983, the Presidium of the Verkhovna Rada of the Ukrainian SSR adopted the Decree supplementing the Ukrainian SSR CC with Article 183-3, which established criminal liability for persistent disobedience to the demands of the administration of a correctional labour facility (hereinafter—CLF) [3].

Article 183-3 of the Ukrainian SSR CC was divided into two parts. Part 1 introduced criminal liability for persistent disobedience to the lawful demands of the administration of a correctional labour facility or other actions opposing the administration in the exercise of its functions by an individual serving a sentence in a penal institution. This liability applies if the individual, within 1 year, has been subjected to punishment for violating the sentence regime in the form of transfer to cell-type premises (solitary confinement) or transfer to a prison facility. Part 2 included qualifying provisions and established criminal liability for the same acts committed by an especially dangerous recidivist or by a person convicted of a serious crime [3]. Today, the law no longer recognizes someone as an especially dangerous recidivist.

With the adoption of Article 183-3 of the Ukrainian SSR CC, which provided for very severe punishment for convicts who persistently disobeyed the demands of the CLF administration, the correct application of this criminal provision became a challenge for lawyers. Subsequent practice demonstrated that the CLF’s administration, which conducted investigations in such cases, the public prosecutor’s offices that monitored the CLF’s compliance with the law, and the courts that tried the relevant criminal cases, made errors in the application of criminal law in cases of offenses under Article 183-3 of the Ukrainian SSR CC. In this regard, on March 26, 1993, the Plenum of the Supreme Court of Ukraine adopted Resolution No. 2 ‘On the Court Practice in Cases of Crimes Related to Violation of the Sentence Serving Regime in Detention Facilities’ [4].

It should be mentioned that, at the time, the Plenum of the Supreme Court of Ukraine was the supreme judicial, organizational, and methodical body in Ukraine’s general jurisdiction court system. It did not administer justice, but ensured that the courts applied the law correctly and uniformly, and also clarified and interpreted the law through its resolutions.

The mentioned resolution explained the terminology used in Article 183-3 of the Ukrainian SSR CC of 1960 and indicated the circumstances that the court should consider while trying criminal cases of this category.

The corpus delicti of the crime, which was established in Article 183-3 of the Ukrainian SSR CC of 1960 and entailed criminal liability for persistent disobedience to the demands of the administration of a correctional labour facility, was transferred in a slightly modified form and entrenched in Article 391 of the new Ukrainian CC adopted in 2001 under the title ‘Persistent Disobedience to the Demands of the Correctional Facility Administration.’ Article 391 of the Ukrainian CC was modified in 2009, and now, it bears the title ‘Persistent Disobedience to the Demands of the Penal Institution’s Administration’. In accordance with the reform of the Ukrainian criminal corrections system, the words ‘correctional facility’ in all declinations and genders were changed in the title and text of Article 391 of the Criminal Code to the words ‘penal institution’ [5].

The practice of applying this criminal law provision revealed legislative gaps in the article’s disposition, as well as its partial inconsistencies and, in some cases, even contradictions with some provisions of the current Ukrainian Criminal Corrections Code. These shortcomings pose a variety of challenges in its practical application and, in other cases, make it impossible to apply this provision at all or result in an inaccurate classification of this type of crime. It suffices to recall the Supreme Court’s resolution, which emphasized that penalties may be imposed on a convict by an authorized person [6].

The commentaries on the disposition of the aforementioned article argue that convicts serving a sentence of imprisonment or restriction of liberty may be the perpetrators of this crime, but this is entirely false. A study of specific provisions contained in the disposition of Article 391 of the CC provides reasonable grounds for asserting that neither the Correctional Labour Code of Ukraine (hereinafter—the CLC) nor the current Criminal Corrections Code of Ukraine (hereinafter—the CCC) contained or contains any provisions allowing persons sentenced to restriction of liberty to be subjected to a disciplinary penalty in the form of transfer to cell-type premises (solitary confinement) or to be transferred to a stricter regime for violating the sentence-serving regime. This, in turn, entirely excludes the possibility of applying Article 391 of the CC to individuals in this category.

The list of disciplinary penalties for persons sentenced to restriction of liberty, defined in Part 1 of Article 68 of the CCC, does not include the penalty of transfer to cell-type premises (solitary confinement). Furthermore, Chapter 13 of the CCC contains no provision envisaging the possibility of transferring persons sentenced to this type of punishment to a more severe regime if they violate their sentence-serving regime. Hence, it can be argued that the part of the disposition of Article 391 of the CC, which establishes criminal liability for persistent disobedience to the demands of the administration by individuals serving a sentence of restriction of liberty, is essentially ‘stillborn’.

Moreover, difficulties have emerged in applying Article 391 of the CC to persons who violated the regime while serving a sentence of restriction of liberty. Article 391 of the CC establishes the following mandatory conditions for their criminal liability: a) a disciplinary penalty in the form of transfer to cell-type premises (solitary confinement) imposed on a convict or his/her prior transfer to a stricter service-serving regime for violating the regime; and b) persistent disobedience by a convict within 1 year after he/she has served this disciplinary penalty or returned from a facility with a more severe regime. However, Part 14 of Article 134 of the CCC provides that if a convict is not subjected to a new penalty within six months after serving the prior penalty, he/she is considered to have received no penalty [7].

Thus, if a convict commits persistent disobedience after the expiration of the six-month period but within 1 year after serving the penalty in the form of transfer to cell-type premises (solitary confinement) as specified in the disposition to Article 391 of the CC, this provision cannot be applied to him/her, as the penalty has already been expunged and he/she is considered to have received no penalty (unless he/she commits a new disciplinary offense).

In this regard, it should be noted that according to criminal corrections legislation effective earlier, the limitation period for imposed disciplinary penalties was set at 1 year, and this fully corresponded to the term established in the disposition to Article 391 of the CC. However, as previously stated, the provisions of Part 14 of Article 134 of the current Ukrainian CCC specify a different term—six months.

An analysis of the provisions of Article 391 of the Ukrainian CC reveals that the discretionary authority granted to the administration of penal institutions is unreasonably extensive. These flaws are evident from the terminology used, particularly, terms such as ‘persistent disobedience’ and ‘other opposing actions’. Even a preliminary attempt at analysing them reveals challenges in determining both the content and the scope of these categories. While the content of disobedience, as a component of a socially dangerous act, being an objective sign of elements of a criminal offense under Article 391 of the Ukrainian CC, is more or less clearly defined as a refusal to comply with the lawful demands of the penal institution’s staff, the category of ‘persistence’ is less clear. Current court practice demonstrates a lack of uniformity in the implementation of the law in this regard, which should be seen as a violation of the concept of citizens’ equality before the law and, as a result, the rule of law. Similarly, the category of ‘other opposing actions’ makes it hard to compile an exhaustive list of acts that the law regards as criminal offenses. It is this circumstance that indicates the groundlessness of the actual criminal rule-making at the departmental level (since the functions of the penal institution’s administrations are largely determined by the subordinate rules and regulations of the Ministry of Justice of Ukraine and orders of the Department for the Execution of Criminal Sentences) and the resulting discretionary nature of the powers vested in penal institution’s administrations, which have gained a legally based ability to use a wide range of law enforcement discretion without clearly defined criteria. Both our study and that of other researchers demonstrate that the nature of these criteria does not always align with the purposes of maintaining law and order in penal institutions, enforcing compliance by convicts with regime restrictions, and disciplinary requirements. In a number of cases, we are dealing with a clear abuse of discretion by the administration of penal institutions as a means of exerting pressure on convicts, a way to force them to behave as desired, and subordinate them to discipline requirements or to the personality of a specific chief of a correctional facility or its structural unit. The underlying motives can range from mercenary-minded and corrupt to red-tapish ones [8].

In the light of the above, some scholars argue in modern scientific literature that the continued existence of Article 391 of the Ukrainian CC is inexpedient. They contend that it contradicts the conceptual provisions of the current CC, which reject administrative (disciplinary) prejudice, because according to the current Ukrainian CCC, the administration of correctional facilities and territorial bodies of the Ministry of Justice of Ukraine possess sufficient powers to influence persistent regime violators, and these powers can ensure the fulfilment of the tasks assigned to the penitentiary system bodies and institutions without resorting to criminal-law measures against convicts.

Furthermore, discussions at the Prosecutor General’s Office level, involving leading national experts from non-governmental organizations focusing on penitentiary issues, have been held to address conflicting interpretations of this provision [9].

It should be noted that the occurrence of new crimes committed by convicts while serving their sentences in penal institutions indicates primarily that these institutions have not created the necessary conditions for proper organization of social and correctional influence, resocialization, rehabilitation of convicts, and preparation for their release. The existing regime and the means supporting this do not contribute to increasing convicts’ responsibility for their behaviour, resulting in the inefficiency of the imposed punishment. Social and correctional measures in penal institutions should align with modern knowledge of human behaviour, and the sentence regime should ensure the implementation of human rights and freedoms, not only of the first generation but also of the modern human rights generation.

It should also be noted that the continued existence and application of Article 391 of the Ukrainian CC, in fact, lead to an artificial increase in the absolute crime rate in correctional facilities. It is argued that as long as there are crimes with this corpus delicti, an even greater danger remains possible (even purely hypothetical). Specifically, there is the potential for unjustified criminal prosecution against individual convicts who, for various reasons (daily living, personal, etc.), find themselves in conflict situations with representatives of the correctional facility administration, because in such cases, relevant administrative officials need only impose a series of disciplinary penalties on a convict during a certain period of time [10].

Persistent disobedience to the demands of the penal institution’s administration referred to in Article 391 of the Ukrainian CC accounts for about a third of all crimes committed in penal institutions [8].

The provisions defining the signs of criminal behaviour must be consistent not only with the principles of criminal law, but also with the principle of legal certainty.

If the proposed provision remains unaltered, individuals will be unable to forecast the adverse outcomes arising from the application of criminal law to them, as there are no limitations on how the legal concepts of ‘persistent disobedience’ and ‘other opposing actions’ are interpreted. This, in fact, results in an overly expansive discretion of powers for the penal institution’s administration, contrary to the case law of the European Court of Human Rights (ECtHR) and violating the concept of legal certainty.

Due to the absence of legal certainty, the continued existence and application of Article 391 of the Ukrainian CC directly contradict the requirements of Articles 21 and 24 of the Constitution of Ukraine. The legislative technique used in Article 391 of the Ukrainian CC should unambiguously convey the essence of the normative provisions, eliminating the need for individuals to guess their contents. In light of the above, it is entirely justified that the European Court of Human Rights (ECtHR), in its judgments, places emphasis on the quality of law. In the current landscape, where the state is often unable to safeguard natural human rights and the principle of legality frequently takes precedence over the rule of law, the case law of the European Court of Human Rights has gained particular importance. However, it was not until 2006 that our country adopted the Law ‘On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights’. This law stipulates that judgments of the European Court of Human Rights are not only binding on Ukraine (part 1 of Article 2), but also serve as a source of law (Article 17). Furthermore, Article 19 of this law states that the case law of the European Court of Human Rights is to be applied in the domain of legislation and administrative practice. The ECtHR particularly underscores the importance of a law’s effects being sufficiently foreseeable and its language being unambiguous, enabling individuals to manage their behaviour (and, if necessary, seek appropriate advice). According to the case law of the European Court of Human Rights, if a regulation’s shortcomings make it impossible to predict the consequences of its application, the person in question is not found guilty on the grounds of inadequate legislation. For instance, in the case of Vierentsov v. Ukraine of April 11, 2013, it is stated that ‘Any restrictions imposed must have a formal basis in primary law. The law itself must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and to foresee what the consequences of such breaches would likely be. The incorporation of clear definitions in domestic legislation is vital to ensuring that the law remains easy to understand and to apply, and that regulation does not encroach upon activities 18 that ought not to be regulated. Definitions should therefore be neither too elaborate nor too broad [11]’. With regard to the ECtHR judgments, it is also noted that the concept of ‘law’ used in Article 7 of the Convention aligns with the concept of ‘law’ used in other articles of the Convention; it covers national law and must be consistent with the principles of accessibility and foreseeability of consequences (as seen in the cases of Cantoni v. France [12] and Ergín v Turkey [13]).

3. Forensic aspects of upholding human rights and freedoms in the investigation of persistent disobedience to the demands of the administration of a penal institution

The investigation of persistent disobedience to the demands of the penal institution’s administration has not been extensively studied in Ukraine. Despite the abundance of forensic literature focused on the methodology of investigating penitentiary crimes, persistent disobedience to administration demands has not been addressed separately [14, 15].

Nevertheless, investigating such offenses comes with its own set of peculiarities, determined by the nature of the crime, typical investigative situations that arise during its investigation, and the tactics employed in specific investigative actions.

When providing the forensic description of persistent disobedience to the demands of the penal institution’s administration, it is essential to consider the following elements: the perpetrator’s personality, the methods of committing crimes, the circumstances of the crime, and the traces of the crime.

We examined approximately one hundred criminal cases initiated and forwarded to court under Article 391 of the Ukrainian CC during 2012–2019 in the following oblasts of Ukraine: Dnipro, Zaporizhzhia, Kyiv, Mykolaiv, and Kharkiv oblasts.

An analysis of the criminal cases studied reveals that the majority of persistent disobedience was committed by men (100% of the materials studied). Typically, these individuals had previously been convicted of mercenary and violent crimes (second or third conviction), falling within the age group of 20–40 years old. Their educational background is generally limited to secondary education, and they are predominantly single.

When describing the methods of committing the criminal offenses under study, it is noteworthy that, in the vast majority of cases, persistent disobedience on the part of prisoners manifested itself in the form of the convict’s refusal to: clean the premises, participate in landscaping, undergo a personal search, leave the cell, bring their clothes to proper condition, or store prohibited items.

The analysis of typical forms of persistent disobedience allows us to classify them into two groups:

• refusal to work;

• violation of the daily routine.

When describing the circumstances of such crimes, it is crucial to note that they are always committed under conditions of obviousness, often having a demonstrative or defiant character. Typically, these acts occur indoors. The circumstances under which such crimes are committed envisage that the convicted person has been previously punished during the current year—before the act of persistent disobedience—by being transferred to cell-type premises (solitary confinement) or to a more stringent regime of his/her sentence. If a convicted person receives a penalty in the form of transfer to cell-type premises (solitary confinement) or to a more severe sentence regime and subsequently, within a year, commits persistent disobedience (repeated refusal to comply with lawful demands of the administration, or similar refusal, even one time, but expressed in a demonstrative or defiant manner), these are the prerequisites for the application of Article 391 of the Ukrainian CC. The study’s results indicate that the number of disciplinary penalties imposed on a convicted person before the application of Article 391 of the Ukrainian CC ranged from 10 to 20 on average.

To date, the concept of ‘lawful demands’ of the penal institution’s administration remains undefined. Meanwhile, the International Standards for the Treatment of Prisoners stipulate that there should be a clear and exclusive list of actions for which prisoners can be punished [16].

However, current regulatory documents lack such a list, creating conditions for arbitrariness by penitentiary institution staff. Actions such as improper behaviour towards a representative of the administration or improperly cleaned bedding are among those for which penalties are imposed and which become the basis for opening of criminal proceedings under Article 391 of the CC. We contend that not only are the principles of fair sentence serving (Article 5 of the Ukrainian CCC) violated but also the expediency of criminal law provisions when they simply turn into repression rather than serve as a means of restoring social justice [17].

Another component of the situation is publicity. The convict’s refusal to comply with specific lawful demands or orders of the administration of a penal institution must be open, that is, expressed publicly. Typically, the convict refuses to comply with a certain demand verbally, voicing his intention not to comply. For instance, he may state that he will not clean the room. Refusal can also be expressed solely through actions, without the convict voicing his intention not to comply with the demand. For example, the convict may fail to sew the badge onto his clothes.

Typical traces of persistent disobedience include:

• witness statements;

• documents.

When describing the process of investigating such criminal offenses, it should be noted that the ground for opening criminal proceedings is always a report from a penal institution about persistent disobedience to the demands of the penal institution’s administration. These notifications are accompanied by acts of identified non-compliance with lawful demands drawn up by the penitentiary institution. However, these acts often lack specification regarding the position of the official who made the demand.

Our study results reveal that investigators and courts do not always verify whether the demands to the convict were actually made by officials authorized to do so on behalf of the penal institution’s administration.

Therefore, during the investigation, the investigator should establish, for each incriminated episode, the authority of the official to legitimately make the demands that the convicted person was supposed to fulfil. Failure to do so leads to a violation of the principle of legality in criminal proceedings.

For instance, during the consideration of the cassation appeal submitted by the defendant’s counsel, the Supreme Court determined that, throughout the appeal procedure, the court did not specifically investigate, for each episode charged against the defendant, whether the officials of the institution were the subjects entitled under the disposition of Article 391 of the Ukrainian CC to make demands on behalf of the penal institution’s administration, despite this issue being raised by the defence counsel. As a result, the Supreme Court annulled the ruling of the Court of Appeal and mandated a new trial in the appellate court [18].

The methodology for investigating persistent disobedience to the demands of the administration of a penal institution presents distinctive features, particularly in the investigative situations at the initial stage of the investigation.

An investigative situation is understood as both the degree of awareness of the investigator about the crime and the state of the investigation process, which takes place for any given period of time, the analysis and evaluation of which allows for the most appropriate decision [19].

In criminalistics, investigative situations are classified based on various criteria into simple and complex, typical and specific, initial, intermediate, and final; conflict-free and conflictual [20]. Determining the specifics of typical investigative situations at the initial stage of investigation of the crimes under study, it should be noted that their nature is influenced not only by the investigator’s awareness of the crime circumstances and the nature of criminal acts committed but also by potential opposition from the suspect.

In our perspective, typical investigative situations at the initial stage of investigation of these crimes are favourable because statements about these crimes originate from penal institution representatives. Consequently, the investigator already possesses information about the person who committed the criminal offense, the manner of the offense, and its circumstances. Depending on the position taken by the suspect, the following types of typical investigative situations emerge:

1. the suspect pleads guilty;

2. the suspect pleads not guilty.

The analysis of investigative and judicial practice has led to the development of the following algorithm for the investigator’s actions in the first typical investigative situation: interrogation of witnesses, request for documents or temporary access to them, and appointment of forensic examinations.

The algorithm for the investigator’s actions in the second situation is somewhat more intricate and may require simultaneous interrogation of two or more already interrogated persons, an investigative experiment, and searches.

Another distinctive aspect of the investigation process for the criminal offenses under study is the necessity to study a substantial number of documents. An analysis of criminal proceedings initiated under Article 391 of the Ukrainian CC allows us to identify the following two main groups of documents:

1. documents characterizing the personality of the suspect;

2. documents related to the procedure for serving the suspect’s sentence.

The first group of documents encompasses acts detailing disciplinary penalties against the suspect, incentives, and the characterization of the convict. This information is stored in the convict’s personal file and can be obtained from the penal institution.

The second group of documents includes:

1. Orders of penal institutions regarding the daily routine of convicts. The examination of these documents is prompted by the fact that persistent disobedience to the demands of the penal institution’s administration is linked to violations of the sentence-serving regime, including breaches of the daily routine of the convicts. Unfortunately, instances occur where the penal institution’s representatives themselves breach the daily routine of the convicts by demanding tasks not outlined in the schedule.

   For instance, the Drohobych City and District Court of Lviv Oblast acquitted the accused due to a lack of evidence proving the elements of a criminal offense in the accused’s actions. The court emphasized that the legitimacy of the demands made by the penal institution’s administration on the accused had not been proved. The legitimacy of such demands should be grounded in the strict adherence of the penal institution’s representative to the rights of the convicted person and the provisions of the criminal corrections legislation. However, the accused was involved in landscaping within the correctional facility in violation of the provisions of criminal corrections law, as it was not part of the convict’s daily routine [21].

2. Orders related to the appointment of penal institution staff, their functional responsibilities, and job descriptions

   Provisions of criminal corrections law stipulate that the correctional facility chief or a person performing this function has the right to make demands on convicts and impose disciplinary penalties. The deputy chief of the correctional facility and the chief of the social and psychological service department of the correctional facility may also apply incentives and penalties. Hence, during the investigation of such crimes, the investigator must establish the legal status of the official who made the demand on the convict.

   Unfortunately, instances occur where penalties for non-compliance with the demand are imposed by individuals who do not have the authority to administer disciplinary penalties and incentives to convicts. For example, the Court of Appeal of Mykolaiv Oblast upheld the acquittal of the Arbuzynskyi District Court of Mykolaiv Oblast dated February 24, 2015, against the acquitted person. The court found that disciplinary penalties against the convict were imposed by the chief of the operational department of the correctional facility and the duty assistant to the institution’s chief from the correctional facility’s department of supervision and security. According to the criminal corrections legislation, such persons do not have the right to impose disciplinary penalties and incentives on convicts because they are not representatives of the penal institution’s administration [22].

   A similar stance was adopted by the Supreme Court, emphasizing that the position of the chief of the enhanced control section is not part of the administration of the penal institution and does not confer the right to administer disciplinary penalties to convicts [23].

3. Medical documentation. Typically, these include medical examinations of convicts before being assigned to specific types of work and medical certificates detailing the convicts’ health status. Such documentation is crucial to assess the absence of medical contraindications for convicts to perform specific types of work.

4. Video footage from surveillance cameras. It is noteworthy that only a third of criminal proceedings included video footage confirming the suspect’s persistent disobedience towards a representative of the administration. This footage is entered upon the record as material evidence.

As observed, the majority of documents are prepared by staff of penitentiary institutions. Therefore, it is imperative for both the investigator and subsequently the court to critically evaluate their contents.

Another distinctive feature of investigating such criminal offenses lies in the tactics employed during the interrogation of the suspect and witnesses.

Investigations of these criminal offenses are conducted against individuals who have previously committed criminal acts. Consequently, suspects are well-versed in investigative rules and the tactics employed during specific investigative actions. Depending on where the investigator conducts the investigative action (whether within a penal institution or not), specific tactics of particular investigative actions will be chosen. Most often, suspects are interrogated within the confines of a penal institution.

The forensic literature aptly notes that when conducting investigative actions on the premises of penitentiary institutions, the investigator must always coordinate his actions with the administration of the institution. This necessitates additional efforts in preparing for investigative procedures [24, 25].

In preparation for the interrogation, the investigator must consider the fact that there is an access control regime on the penal institution’s premises. This regime is established by the penal institution’s administration and is executed in line with the procedures stipulated by applicable law.

Therefore, before conducting an interrogation, the investigator needs to obtain a pass. Law enforcement officers and defence counsels have the right to bring only materials and documents related to the proceedings into the institution’s premises.

The selection of tactical techniques for interrogating suspects will depend on the situation of the interrogation. For instance, if the suspect provides truthful testimony, tactics such as free narration, detailing testimony, and updating forgotten information are employed.

In situations involving false testimony from suspects, the most effective tactical methods include asking clarifying questions, presenting evidence, conducting repeated interrogations, applying a specific order of questioning, and commencing the interrogation with known facts supported by evidence. When interrogating a suspect, it is crucial for the investigator to consider the prison subculture.

To prevent potential opposition from the suspect, the entire course of the interrogation should be recorded either on audio or video.

We concur with researchers who emphasize the necessity of establishing dedicated interrogation premises within penitentiary institutions where interrogations can be conducted in the penitentiary institution conditions. These premises should be provided with modern technical, forensic, and office equipment [26].

Another distinctive aspect of investigating persistent disobedience to the demands of the penal institution’s administration is the tactical considerations when questioning witnesses. The investigation of these crimes necessitates questioning of witnesses by the investigator. This investigative action is urgent. The witness pool is diverse and includes the following groups:

1. Staff of penal institutions: During their questioning, the investigator can obtain significant forensic information about the time and place of persistent disobedience, the method of the crime, incentive or penalty measures applied to the suspect, the suspect’s connections, and information about relatives and friends.

   However, it is essential to note situations where improper treatment of convicts becomes a norm within penal institutions. As justly noted in forensic literature, the practices of dehumanization and depersonalization of convicts play a significant role in this process.

   The investigator should mind that in instances where representatives of the penal institution violate the law, covering up for each other and a corporate culture of silence among its staff may exist. Thus, according to expert estimates provided by human rights defenders, correctional facility staff may coerce prisoners to write refusals from contacts with lawyers and human rights defenders, and deny access to or third-party doctors [26].

2. Convicted persons serving their sentences in the same facility with the suspect. Interrogating these individuals, the investigator founds when and under what conditions they observed persistent disobedience, the manifestations of disobedience, the suspect’s characterization, and the reasons and conditions contributing to the crime.

3. Relatives, acquaintances, and friends of the suspect: These individuals can offer information about the suspect’s lifestyle, connections, and preferences. The results of the study indicate that these persons may provide objective insights into the relationship between the penal institution management and the suspect.

In terms of specialist assistance, investigators typically seek the help of forensic specialists. The forensic examinations typically made within the investigation of these crimes are dactyloscopic and traceological examinations.

4. Conclusions

The conducted study confirms that the provisions of Article 391 of the Ukrainian CC, owing to their legal uncertainty, cannot ensure the implementation of human rights and carry a substantial corruption-inducing element arising from the broad discretionary powers vested in the administration of penal institutions. The presence of such a provision does not encourage the adoption of modern social and correctional methods of working with convicts in the activities of penal institutions; rather, it perpetuates the use of Soviet-style methods suppressing individuals who are deemed politically undesirable.

The distinctive aspects of investigating persistent disobedience to the demands of the penal institution’s administration, shaped by forensic characteristics of such crimes, typical investigative situations, and the tactics of specific investigative actions, further strengthen the argument for eliminating this provision from criminal legislation.

Typical forms of persistent disobedience include refusal to work and violation of daily routines. These crimes often occur blatantly, leaving typical traces such as: (1) witness testimonies from fellow convicts and penitentiary institution staff; and (2) documents typically drawn up by penitentiary institution staff.

Reports regarding these crimes typically originate from penitentiary institution representatives, so, information about the suspect is already available at the initial stage. Suspects are usually interrogated on the penitentiary institution’s premises.

In conclusion, investigative and judicial practice reveals several factors that adversely impact the progression and outcomes of investigations into persistent disobedience to the demands of the penal institution’s administration.

Prospects for further scientific developments in this direction could include studying the legislation of European states regarding the responsibility of individuals convicted for violations of the rules of serving imprisonment sentences and the practices of their investigation. This will allow for the adaptation of Ukrainian criminal legislation to European Union legislation.