Separate issues of exemption from serving a probationary sentence

Abstract

The article is devoted to the peculiarities of exemption from serving a sentence with probation on the basis of Art. 75 of the Criminal Code of Ukraine. In the article, the authors drew attention to the peculiarities of exemption from serving a sentence (Article 75 of the Criminal Code of Ukraine), the peculiarities and terms of such an appointment; duties imposed by the court on a person released from serving a probationary sentence (Article 76 of the Criminal Code of Ukraine). The state of the current criminal legislation is considered on the example of court practice. Exemption of a person from serving a sentence with probation is used quite often by the courts, taking into account the conditions contained in Art. 75 of the Criminal Code of Ukraine. The first thing the court pays attention to is the term of the imposed punishment, namely, no more than five years, and the absence of specific criminal offenses specified in the article, taking into account the changes made on December 13, 2022. Equally important is the consideration of the identity of the culprit, namely: social status, demographic data, post-criminal behavior, criminal-legal characteristics, etc. And also the presence of mitigating and aggravating circumstances. An important point is the clarification of the Criminal Court of Cassation as part of the Supreme Court of Ukraine regarding exemption from punishment with probation for a criminal offense committed with complicity. A review of previous numerous studies on the subject under consideration and an analysis of the gaps that were pointed out in the conclusions of the studies were carried out.
 Special attention was paid to the draft of the Criminal Code of Ukraine and the norms contained in it regarding exemption from punishment in connection with probation. A comparison with the current criminal legislation was made, and positive points were identified, such as an increase in the term of the prescribed punishment from five to eight years, except for the one convicted of a crime of the 6th degree of gravity, related to the use of violence. There are also no restrictions in the project regarding a certain category of criminal offenses, for example, corruption or related to corruption, certain military criminal offenses (Articles 403, 405, 407, 408, 429 of the Criminal Code), torture (Part 3 of Article 127 of the Criminal Code). On the basis of the conducted research, meaningful conclusions were made with the indication of problematic points and measures to eliminate them.