Some actual issues ofexemption from serving a sentencewith the probation in accordance with the criminal law of Ukraine are under consideration in the article. The definitions of criminal-law terms and proposals concerning enforcing criminal-law legislation are given as well.
Keywords: exemption from serving a sentence, criminal law, obligation, woman, reformation.
Implementation in the Criminal Code of Ukraine (further — CC of Ukraine) an idea of humanization of a criminal liability has given the cause for an existence of an exemption from serving a sentence institution for a person, who has committed a crime. Exemption from serving a sentenceusually means a refusal of a state to enforce a penalty concerning a person, who, according to verdict of guilty, is convicted in committing a crime. The institution has a great significance for a development of Ukrainian state-hood, as very often the purposes of a sentence can be reached without serving, and serving itself appears to be unnecessary, ineffective, damaging the person`s, guilty in committing a crime, reformation process.
Issues ofexemption of a person from serving a sentenceare included in the area of scientific interests of following scientists as O. O. Dudorov, O. P. Goroh, A. A. Muzyka, E. O. Pysmensky and the others. However, a judicial practice of Ukraine has real problems of enforcing this institution.
Taking into consideration a significance and necessity of working out the problems, the aim of given article is to give scientific-practical recommendations by means of enforcing articles 75–79 of CC of Ukraine. Specific features of the given aim are conditioned by two factors. The first — is exclusively of researching character — to explain own scientific grounds on optimization issue of appropriate judicial practice. The second — is so called comparative — drawing scientists of Russian Federation and the other specialists in discussing problematic issues of Ukrainian legislation and enforcing it in practice as well. It`s obviously to claim that Ukrainian and Russian Federation`s Criminal Codes, at the level of legislative practice, are almost identical. In addition, they were worked out on a basis of general typical document — Model of Criminal Code for the states-participants of CIS.
There shall be considered in the article general terms of exemption from serving a sentence with the probation (art. 75–78 of CC of Ukraine), exemption from serving a sentencewith the probation of women and those who are the mothers of children who haven`t attained the age of seven years old (art. 79 of CC of Ukraine).
The Chapter XII of CC of Ukraine “Exemption from a sentence and serving” provides for such encouraging norms as exemption of sentenced person from a sentence or from further serving, substitution of one punishment for a milder one, commutation of imposed sentence as well. Exemption from serving a sentence — non-enforcement by a court of penalty concerning a person, sentenced for committing a crime. Exemption from serving a penalty — sentenced person`s discontinuing a further serving a sentence for committing a crime. Commutation of imposed penalty — is easing of degree and term. Substitution of one punishment for a milder one — is substitution of not served part of one punishment for another, which is milder (sentences, contained in CC of Ukraine are put from mildest to most severe).
Exemption from serving a sentence with the probation is a right of a court, not an obligation. It takes place in time of infliction of such penalties as correctional works, official restrictions for military men, confinement for a term not longer than five years. Confinement for a term not longer than five years means a real fixing a time limit of sentence, but not a maximal limit of sanction of norm of the article of Special chapter of CC of Ukraine, whereby an accused person is being adjudged.
While making decision on exemption, a court takes into account a gravity of a crime, identity of the accused, probability of reformation of a person under a sentence without serving a sentence and the other circumstances of a case.
The indicators of a gravity of a crime are the character and degree of its danger to the community. Identifying a gravity of a crime`s degree, it`s necessary to proceed from a classification of crimes (art.12 of CC of Ukraine), also from specific features of concrete crime and circumstances of its committing (form of a blame, motive and a purpose, means, stage of committing, quantity of criminal activity episodes, role of each of abettors, in case if a crime is committed by group of persons, character and gravity of consequences caused etc) (par.1 of the cl.3 of the resolution of Plenary session of Supreme Court of Ukraine “On practice of infliction by courts of criminal punishment”, 24-th of October 2003 № 7).
An identity of the accused can be characterized by following data: behavior of the accused before and after committing a crime (aiding to suffer, admission of guilt), life behavior, in public areas, in office or educational institution, being recognized as a participant of a war, if awards are available, presence of criminal record and administrative penalty, age, state of health, physical disability and so on.
The rest of circumstances of a case are: family status of an accused, dependence of other persons on him, grave diseases of members of family, reconciliation with a victim and so on.
In case if a decision on exemption from serving a sentencewith the probation is taken, a court fixes a trial period, when an accused must not commit another crime and is obliged to carry out its obligations, provided for art.76 of CC of Ukraine.
A trial period must be not less than one year and not longer than three years. It starts from announcing a sentence of a court (part 1 of the art.165 of Criminal-Executive Code of Ukraine).
In case of exemption from serving a sentencewith the probation a court can oblige a person under a sentence to carry out one or several obligations, which are laid down by part 1 of art.76 of CC of Ukraine.
The content of the article means that a court can exempt a person without obliging a person to carry out obligations mentioned-above.
Part 1 of the art.76 prescribes following obligations:
1) apologizing to a suffer in public or in some other way. Public character of apology prescribes a presence of other persons in the process of apologizing which is being said by an accused to a suffer: in a hall of court session, at the meeting of sentenced and suffer`s working or student collectives, by means of mass media and so on. The different way of apologizing prescribes a letter from a sentenced person to a suffer, oral apology of a sentenced person to a suffer tete-a-tete and so on. An issue concerning way of apologizing is under court`s consideration taking into account the circumstances of a case and desire of a suffer. In case of obliging a person under a sentence to apologize to a suffer in public or in other way, the person has to file a confirmation of fulfilling its obligation (for example, by radio, TV, newspaper, magazine or a letter). Especially important reforming influence of this obligation is for a minor person.
Under a criminal conduct, a physical person can be regarded as a suffer, who, by means of criminal breach, is insulted, injured or damaged to property and a legal person as well, who, by means of criminal breach, is damaged to property. The rights and duties of a suffer have been acting since filing of an application on committing against him a criminal breach or an application on joining to criminal conduct as a suffer (art.55 of Code of Criminal Procedure of Ukraine);
2) not leaving Ukraine for permanent residence without permission of criminal-executive inspection. If a court has obliged a person not to leave Ukraine for permanent residence, the latter may leave only after revising all the causes for departure by inspection (for example, a necessity to move, which is confirmed by documents or a certificate for permanent residence in foreign state can be regarded as grounds etc);
3) informing a criminal-executive inspection about moving from previous place of living, changing office or study. A person under a sentence, who is obliged to inform an inspection about moving from previous place of living, changing office or study, is to do it before changing or in course of three days after changing in a written form;
4) visiting on a regular basis a criminal-executive inspection for a registry. In case of not appearing when summoned without valid reasons, there can be used an excuse by appropriate internal affairs agencies relating to a sentenced person.
The valid reasons for not appearing of a person when summoned to inspection for a fixed period are: not timely receipt of summon, disease and the other circumstances, that in fact deprive of a chance to appear when summoned and which are documentary confirmed (part 5 of the art.166 of Criminal-Executive Code of Ukraine);
5) receiving treatment for alcoholism, drug abuse or disease, that is dangerous for a health of the others.
An obligation to receive treatment for alcoholism, drug abuse or disease, that is dangerous for a health of the others, provides for receiving some course of treatment. A sentenced person can be obliged in this way by the right of a court in case of confirmation of abuse of alcohol, drugs, also in case of medical conclusion of a necessity to receive an appropriate treatment.
If a court has obliged a person under a sentence to receive treatment for alcoholism, drug abuse or disease, which is dangerous for a health of the others, discharging by a person of its obligation is to be confirmed by appropriate information of medical institution.
The list of obligations mentioned above is exhaustive, and a court must not oblige a person, which is exempted from serving a sentencewith the probation, in another, not laid down in law, ways.
2. The control under behavior of such persons under a sentence is provided by criminal-executive inspection in place of residence of sentenced person, and concerning accused military men — by commanders of military units. Such control includes: recording of sentenced persons in course of trial period; providing together with internal affairs authorities and appropriate public institutions an individual-prophylactic work under sentenced persons; observing by sentenced persons a public order and carrying out duties, they are obliged by a court; excuse of sentenced persons, who have not appeared when summoned to inspection; making initial investigating measurers concerning sentenced persons, whose location is unknown; providing the other measures in accordance with legislation.
In compliance with art.77 of CC of Ukraine in case of exemption from serving a sentence with the probation, a sentenced person can be additionally punished by imposing fines, deprivation of right to hold some offices, deprivation of military, special rank, title, grade or qualification class (property confiscation is excluded). Simultaneously, when person is exempted from serving a sentencewith the probation there is a chance, not an obligation to impose additional penalties.
Additional penalties, which are imposed when person is being exempted, are to be discharged independently.
Imposing additional penalties in case of exemption from serving a sentence with the probation is to be done in accordance with CC of Ukraine.
A fine as an additional penalty can be imposed only when it`s prescribed on a special basis in sanction of an article (sanction of part of an article) in Special part of CC of Ukraine (part 3 of the art.53 of CC of Ukraine). For more details about fine see commentary to art.53 of CC of Ukraine.
The deprivation of right to hold some offices or make some activity as an additional penalty can be imposed also in case when it`s not prescribed in sanction of an article (sanction of part of an article) in Special part of CC of Ukraine taking into account a fact of crime committing in office or it has something to do with making some activity, identity of a sentenced and another circumstances of a case, then a court recognizes it impossible for a sentenced person to remain a right to hold some offices or make some activity (part 2 of article 55 of CC of Ukraine).
Imposing a deprivation of holding some offices or making some activity as an additional penalty to an arrest, confinement, keeping military men in disciplinary military unit or confinement for some term — it applies to the all term long of a main penalty and, additionally, to a term, imposed by a judgment, which come into force. Moreover, a term of additional penalty starts from the moment of serving a main penalty, and when a penalty is a depravation of right to hold some offices or make some activity as an additional to the other main penalties, and also in case of enforcing article 77 — from the moment of judgment entering into force (part 3 of the art.55 of CC of Ukraine).
Deprivation of military, special rank, title, and grade or qualification class can be enforced to a person sentenced for committing a grave or especial grave crime, who has a military, special rank, title, and grade or qualification class (art.54). For more details about deprivation of military, special rank, title, and grade or qualification class see commentary to art.54 of CC of Ukraine.
After a trial period expiring, a sentenced person, who has fulfilled its obligations and committed no another crime, is being exempted on the proposal of a criminal-executive inspection by a court from an imposed penalty, his behavior is no longer under control, and a sentenced person is being crossed off the criminal-executive inspection`s register (part 2 of the art.165 of Criminal-Executive Code of Ukraine). After expiring a trial period, during of which a sentenced person has fulfilled all the obligations, imposed by a court and committed no another crime (that is to be confirmed by a demand of a presence of a criminal record and bringing to a criminal responsibility from internal affairs information technologies department), it is being sent a proposal and personal case of sentenced person to a court concerning making decision on exemption from an imposed penalty. If a last day of a trial period is a holiday or a day of celebration, a proposal is being made on first day after them. The proposal contains an information concerning person`s behavior facts in the course of being registered, concerning person`s fulfillment of its obligations, person`s characteristics in place of work, study or residence.
If a sentenced person dodges its obligations, imposed by a court or was being brought to administrative responsibility for breaking a public order, he is brought an admonition in a form of written warning about prospect of abolition of exemption from serving a sentence with the probation and nomination for serving a sentence, imposed by a court (part 1 of the art.166 of Criminal-Executive Code of Ukraine).
If a sentenced person dodges its obligations, imposed by a court after admonition in a form of written warning or three and more times was breaching a law, that were causing administrative enforcement which are the witness of its will not to reform, and also when a sentenced person doesn`t appear to an inspection two or more times without valid reasons (that is to be confirmed by appropriate information) or left its place of residence to avoid a control under its behavior, an inspection makes a proposal to a court on abolition of exemption from serving a sentence with the probation and nomination for serving a sentence, imposed by a court.
Sentenced person`s non-fulfilling any of obligations, imposed by a court is regarded as a total non-fulfilling (for instance, a sentenced person doesn`t appear to an inspection two or more times in succession without valid reasons). A proposal to a court on abolition of exemption from serving a sentence with the probation is to be adducted to a court during a month after establishing such facts (part 3 of the art.166 of Criminal-Executive Code of Ukraine).
In case a sentenced person commits another crime during a trial period, a court imposes a penalty taking into account a total quantity of sentences in accordance with rules of imposing penalties and taking into account a term of previous confinement.
Exemption from serving a sentence with the probation of women and those who are the mothers of children who haven`t attained the age of seven years old is a right of a court, not an obligation as well. It takes places in the course of imposing on pregnant women or those who are the mothers of children who haven`t attained the age of seven years old only such penalties as restraint of liberty or confinement for more than five years for grave or especially grave crimes.
Confinement for more than five years means a real imposed term of a court`s sentence, but not a maximal limit of sanction of norm of the article of Special chapter of CC of Ukraine, whereby an accused person is being adjudged.
Exemption from serving a sentence with the probation of pregnant women and those, who are the mothers of children, who haven`t attained the age of seven years old, touches upon both main and additional penalty.
In case of exemption, the persons mentioned-above are given a trial period, during which, in accordance with a law, a woman can be released from work because of pregnancy, childbirth and child attaining seven-years old age.
These confinement terms are prescribed in Code of Labor Laws of Ukraine, particularly art.179 contains the regulation about maternity leaves, childbirths leaves, and childcare leaves as well. For instance, on a basis of a medical conclusion, women are given a maternity leave with pay of 70 calendar days before childbirth and 56 (in case of delivery of two or more children and in case of difficult birth — 70) calendar days after childbirth, starting from a day of birth.
Duration of a maternity leave is a summary and consists of 126 calendar days (140 calendar days — in a case of delivery of two or more children and in case of difficult birth). The leave is given to women entirely independently on a quantity of days, which were spent for childbirth in fact.
According to a woman`s desire, she`s given a childcare leave until a child attains a three-years old age with pay during these periods an allowance in accordance with a legislation.
In case of exemption from serving a sentence with the probation of pregnant womenand those who are the mothers of children, who haven`t attained the age of seven years old, a court can oblige a sentenced woman in a way, prescribed in the article 76 of CC of Ukraine. For more details see commentary to art.76 of CC of Ukraine.
Concerning pregnant womenand those who are the mothers of children who haven`t attained the age of seven years old, exempted from serving a sentence with the probation, a criminal-executive inspection together with respective internal affairs agencies controls following issues as well: did a woman refuse from its child and did she send her child to children`s home? did she move from its place of residence? did she dodge upbringing her child and caring? For more details about a control under sentenced persons` behavior see commentary to part 2 of the art.76 of CC of Ukraine.
If a sentenced person breaches requirements, which derive from a legislation, that, in its turn, witnesses her absence of desire to reform itself, a proposal on abolition of exemption from serving a sentence with the probation (exemption from serving a sentence), nomination of a sentenced person for serving a sentence imposed by a court and personal case of a sentenced person are being sent to a court.
After expiring a trial period, a court, depending on a sentenced woman`s behavior, exempts her from serving a sentence or nominates her for serving a penalty, imposed by a sentence.
Exemption from serving a sentence takes place under condition of observing during all the trial period long conditions of this article, that is a witness of person`s confirming its reformation. In this case a person is regarded as that who has no criminal record (p.1 of the art.89 of CC of Ukraine).
Non-observing any of the conditions mentioned-above obliges a court to nominate a sentenced woman to serving a penalty, imposed by a sentence.
A court, in accordance with a proposal of a control body, nominates a sentenced woman to serving a penalty, imposed by a sentence when one of the following circumstances appears: 1) in case when a woman, exempted from serving a sentence with the probation, refused from its child; 2) sent her child to a to children`s home; 3) moved from its place of residence; 4) dodges upbringing her child and caring; 5) does not fulfill obligations, imposed by a court; 6) breaches a law on a systematic basis, that caused administrative enforcement and witnesses an absence of desire to reform itself.
A sentenced person, whose location is unknown during 30 days after making initial investigating measures by a criminal-executive inspection, is regarded as disappeared from its place of living.
In case of committing by a sentenced woman in time of a trial period another crime, a court imposes a penalty taking into account a total quantity of sentences in accordance with rules of imposing penalties and taking into account a term of previous confinement.
Summing up, we should note, that at the present stage of Ukrainian state-hood`s development, reaching a purpose of a penalty should, as it`s possible, be secured by means of preventive measures, without an influence of a penalty, one of them is an exemption from serving a sentence with the probation.