Удосконалення обставин, які помʼякшують та обтяжують покарання, у контексті реалізації положень Стамбульської конвенції

Abstract

The purpose of the article is the analysis of innovations concerning the circumstances commuting and aggravating a penalty, caused by implementation of provisions of the Convention of the Council of Europe on prevention of violence against women and domestic violence and fight against these phenomena of May 11, 2011. The article analizes the actual problems of the interpretation and application of the relevant circumstances as well as suggestions for their solution. The research is based on scientific works of the Ukrainian and foreign scientists and also provisions of the Convention of the Council of Europe on prevention of violence against women and domestic violence and fight against these phenomena of May 11, 2011, the Criminal code of Ukraine, to judicial practice and considers experience of certain foreign countries. The scientific novelty of the article is offering a new to interpretation of Paragraph 7 Part 1 Article 66 of Ukrainian Constitution, is stated the recommendation concerning improvement of Paragraph 3 Part 1 Article 67 of Ukrainian Constitution (in the context of sex) and also offers on rendering court of the right depending on the nature of the committed crime not to recognize the circumstances provided in Paragraphs 6, 6-1 Part 1 Article 67 by Ukrainian Constitution such aggravating punishment are formulated. By results of the conducted research conclusions relatively are formulated: 1) recognition of a circumstance that mitigates the punishment, the commission of a crime in the presence of a systemic nature of the cruel or degrading person’s honor and dignity, the treatment of the victim in the absence of influence of strong emotional anxiety; 2) the expediency of replacing the term «systematically» in the Criminal Code of Ukraine «systematically» and providing its legal definition in the note to Article 78 of the Criminal Code of Ukraine; 3) non-inclination of Item 3 of Part 1 of Article 67 of the Criminal Code of Ukraine (committing a crime on the basis of sexual attachment) cases of crimes committed on the basis of sexual orientation; 4) the need to clarify and harmonize the terminology of clause 6 part 1 of Article 67 of the Criminal Code of Ukraine, as well as bring it in line with other provisions of the law on criminal liability; 5) granting the court the right, depending on the nature of the crime, not to recognize the circumstances envisaged in Paragraphs 6, 6-1 Part 1 of Article 67 of the Criminal Code of Ukraine, impose penalties, motivating their decision in a sentence. Keywords: domestic violence; Istanbul Convention; crime; circumstances that impose a punishment; circumstances that mitigate punishment; gender; sexual affiliation; child; young child; minor.