PROBATION SUPERVISION: PUNISHMENT WITHOUT ISOLATION OR AVOIDANCE OF RESPONSIBILITY FOR CRIMES — BLOG of Viktor Surnik for the newspaper “Yuridichna Praktika”

On September 26, 2023, the President of Ukraine signed the Law of Ukraine “On Amendments to the Criminal, Criminal Procedural Codes of Ukraine and Other Legislative Acts of Ukraine on Improving Types of Criminal Punishment”.

I quoted the full name of this Law only from a legal position, but few will understand what is encrypted in the name of this Law, so I will start with a simple, what is this Law about.

I would like to remind you that in Ukraine there are several types of punishments for wrongful actions or inaction, namely: disciplinary, material, administrative, financial and criminal. Each type of listed responsibility has certain types of penalties, which are provided for in the “profile” codified acts. An elementary example, the driver violated the rules of the road, this is administrative responsibility, the punishment for this is provided for in the Code of Administrative Offenses, as a result he received a penalty in the form of a fine or deprivation of a driver's license. When a person has committed a crime, he must incur punishment, which is provided for by the Criminal Code of Ukraine.

This Law makes changes to both the general and special parts of the Criminal Code of Ukraine, in particular, it is supplemented by Article 51 of the Criminal Code of Ukraine (an article that defines the types of punishments), a new type of punishment — probation supervision, and also changes some provisions of the Criminal and Executive Code of Ukraine.

What is it? Why is it introduced and what benefits will it have for society? According to the explanatory note to this, the Law has already been developed with the aim of introducing punishment in the form of probation supervision, which will contribute to the humanization of the penitentiary system and expand the possibilities for correcting a person without isolation from society.

I, as an ordinary citizen, would immediately have questions: How is it, the criminal will be free? But I am a lawyer and I know that the Law of Ukraine “On Probation” was adopted back in 2015 and thanks to this law, we can understand the very definition of probation. I remind you that probation is a system of supervisory and socio-educational measures applied by court decision and in accordance with the law to convicts, execution of certain types of criminal penalties not related to imprisonment, and providing the court with information characterizing the accused.

That is, the Law will not allow a criminal to escape criminal punishment, and such a criminal will not walk free, on the contrary, such a punishment will be, but the offender will pay him off at home, or in another environment where he will not be able, for example, to communicate with neighbors, walk in parks, visit shops and so on more. Such a person will be assigned many duties, for violation of which a more severe punishment may be applied to such a person, which will already be associated with imprisonment, moreover, such a person will be forced to wear an electronic bracelet. As with imprisonment or arrest for committing a criminally punishable act or inaction, it will be the court that will sentence a person to probation supervision and it will be the court that will determine whether the person deserves such a “mild” punishment.

How is it, killed or raped a person and stays at home?

No, definitely not! The law extends to separate parts of about thirty articles of the Criminal Code of Ukraine. These are mostly articles whose sanctions provided for such a type of criminal punishment as arrest. For example, such a type of criminal punishment as probation supervision can, I emphasize “can”, since each article of the Criminal Code of Ukraine provides for several types of criminal punishment, depending on the severity of the commission of a particular act or inaction, be applied for criminal acts provided for by separate parts of the articles of the Criminal Code of Ukraine, namely: evasion of alimony; falsification of documents; creation or maintenance of places of debauchery and adultery and others. Arrest under Article 51 of the Criminal Code of Ukraine, as a type of criminal punishment, remains, but will be applied much less frequently. This will make it possible to free up places in so-called houses of detention, detention centers and other places of imprisonment. Which is one of the main purposes of this law.

Why is there an urgent need for the introduction of probation supervision? Because, on February 24, 2022, a full-scale Russian invasion of Ukraine began, a large number of prisoners of war, collaborators and other criminals appeared, and, no one excluded from the Criminal Code, the crimes committed by our servicemen, that is why there was an urgent need execution of places of punishment by criminals.

And what about individuals who are already serving sentences, unjustly somehow true? No, this is also not true, because according to Article 58 of the Constitution of Ukraine, laws and other regulatory acts do not have retroactive effect in time, except when they mitigate or cancel the responsibility of a person. Probation supervision just softens the responsibility of a person, therefore, sentences for which a person serves a sentence that is associated with imprisonment under the article amended by this Law, can be reviewed on the relevant application of the convicted person to the court.

It is important that the Law was adopted in order to implement the order of the Cabinet of Ministers of Ukraine dated December 16, 2022 No. 1153-r “On Approval of the Strategy for Reforming the Penitentiary System for the period up to 2026 and approving the operational plan for its implementation in 2022-2024”.

And most importantly, the implementation of this Law does not require funding from the state budget of Ukraine. In Ukraine, a probation service has already been established and is functioning, which must, among other things, prepare for the court a pre-trial report on the accused with evidence, which will greatly facilitate the work of judges.

Some European countries have been applying the institution of probation for decades, such as: Austria, England and Wales, the Netherlands and others.

The introduction of probation supervision is not a temporary measure for the period of martial law, but is another step forward on the path of Ukraine's accession to the European Community.