SOME PROBLEMS OF THE PRACTICE OF APPLYING THE INSTITUTION OF (PRETRIAL) PROBATION IN CRIMINAL PROCEEDINGS

Abstract

The purpose of the article is the identification of some problematic issues of the practice of applying the institution of (pre-trial) probation in criminal proceedings, the search and proposal of ways to solve them in order to contribute to ensuring the stability of judicial practice on the functioning of (pre-trial) probation in criminal proceedings. Methods. To achieve the goal, a dialectical methodological approach was used, which allowed to consider the law enforcement practice in relationship and the interdependence between itself and provision of the legislation and to conclude about their internal inconsistency. Formal and logical methods of analysis, synthesis and generalization were used to identify problematic issues of judicial practice and formulate conclusions. To provide recommendations that will contribute to the solution of certain law enforcement problems and increase the effectiveness of judicial practice, the forecasting method was also applied. Results. The article highlights some problems of the practice of applying the institution of (pre-trial) probation in criminal proceedings. It is established that after the adoption of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Ensuring the Execution of Criminal Punishments and the Implementation of the Rights of Convicts” No. 1492- VIII dated September 7, 2016, by which the Code of Criminal Procedure of Ukraine (CCP of Ukraine) was supplemented by Article 314-1, which regulates the procedural mechanism of preparing and entering into criminal proceedings a pre-trial report of the probation authority, a number of problems arose in practice related to the procedural status of a new participant in court proceedings – a probation officer, as well as the significance of the pre-trial report on the personality of the accused for the court when deciding on the type and extent of the punishment. It is clarified that the courts, due to the absence of necessary materials for the preparation of a pretrial report, oblige the prosecutor to provide the probation officer with access to the criminal proceedings’ materials related to the establishment of circumstances determined by the para. 4, 5 of part 1 of the Article 91 CCP of Ukraine. On the other hand, such approach of the courts of first instance contradicts the requirements of the criminal procedural law in view of the subscribed order of familiarization with the case materials by the participants in the court proceedings and the powers of the prosecutor. Because of fact that the probation officer does not have an opportunity to familiarize with the materials of the proceedings before the start of the trial, the author proposes two approaches to solving the situation: lawenforcement and legislative one. The first consists in the establishment by the courts of a sufficient period for the preparation of pre-trial report with the possibility of its extension and the parallel continuation of the trial of criminal proceedings. The second approach dictates the need to make amendments to the CCP of Ukraine by establishing a minimum term for preparing a probation report, which would be completed no earlier than the end of the clarifying of the circumstances of criminal proceedings and the transition to court debates. It is found that the Criminal Cassation Court of the Supreme Court in its practice follows the position according to which the pre-trial report of the probation officer has a recommendatory nature for the court, which the latter can consider based on its discretionary powers. At the same time, the analysis of the practice of the same court indicates its inconsistency on the specified issue. In some cases, he cancels the decisions of the lower courts on the grounds of their inconsistency with the data and conclusions of the pre-trial report in aspect of the imposed punishment. The author emphasizes that the probation report is the evidence in criminal proceedings, which determines not only its advisory nature for the court at the stage of passing a sentence, but also the need for the court to evaluate the content of this report. Conclusions. It is concluded that the court decision, which does not state the reasons for not considering the pre-trial report when determining the type and measure of punishment, will be a subject to cancellation.