RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of October 24, 2003 No. 7

About practice of appointment of criminal penalty as courts

Due to the adoption of the new Criminal code of Ukraine (further UK) in court practice questions concerning application of its separate provisions which regulate assignment of punishment arise.

For the purpose of ensuring the correct application of the legislation, remedial action and mistakes in activity of the courts by consideration of criminal cases the Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that they in case of assignment of punishment in each case and concerning each defendant who is found guilty of crime execution shall observe strictly requirements of Art. 65 of UK of rather general bases of assignment of punishment as through the last the principles of legality, justice, justification and individualization of punishment are implemented.

Imposing penalty, in each case courts shall follow requirements of the penal statute and shall consider severity of the committed crime, this about the identity of the guilty person and circumstance who commute and aggravate penalty. Such punishment shall be necessary and sufficient for correction of the convict and the prevention of new crimes. At the same time courts shall consider also requirements of the Code of penal procedure of Ukraine (further - the Code of Criminal Procedure) concerning assignment of punishment.

Part 2 of Article 375 and part 2 of article 400 Code of Criminal Procedure set certain restrictions in case of assignment of punishment in comparison with the procedure provided by the penal statute. In particular, in case of new trial of case punishment can be strengthened or the provision of the law about more serious crime only in cases is applied:

- if the sentence was cancelled according to the appeal or cassation representation of the prosecutor, the appeal or the writ of appeal of the victim or his representative because of softness of punishment, or due to the need of application of the law on more serious crime;

- if criminal case for any reasons went for new or additional investigation during which it was determined that the person accused committed more serious crime or if the accusation amount increased. In this case does not matter whether the sentence according to the appeal or the writ of appeal of the victim or his representative, the appeal or cassation representation of the prosecutor was cancelled.

2. Draw the attention of courts that the conclusions on all questions connected with assignment of punishment need to be motivated properly in sentence.

According to item 1 p.1 of Art. 65 of UK courts shall impose penalty in the borders established by the sanction of Article (the sanction of part of Article) of the Special part of UK which provides responsibility for the committed crime. Taking into account severity, circumstances of this crime, its effects and data on the personality courts should discuss question of purpose of more stiff punishment prescribed by the law to persons who committed crimes because of alcoholism, of alcoholism, drug addiction, in the presence of crime recurrence, as a part of organized groups or at more irregular shapes of partnership (if these circumstances are not the qualifying signs), and less strict - to persons, who for the first time committed crimes, to minors, women, who for the period of crime execution or consideration of the case were in pregnancy condition, to disabled people, elderly people and those, which sincerely regretted in committed, actively promoted disclosure of crime, paid the caused loss and so forth.

If the sanction of the law on which person is found guilty on an equal basis with imprisonment for certain term provides softer types of punishment, in case of adjudgement it is necessary to discuss question of assignment of punishment, not connected with imprisonment. In case of election of custodial sanction it is the decision it shall be motivated in sentence.

Imposing mulctary punishments or corrective works and determining the size and terms of the corresponding punishment, courts shall consider property condition of the defendant, availability on its content of minor children, parents of old age and so forth.

According to part 4 of article 53 UK court, imposing mulctary punishment, can make taking into account property condition of person the decision on payment by installments of payment of penalty certain parts for up to three years and establish frequency and the amount of such payments.

In case of assignment of punishment the minor defendant according to Art. 103 of UK except the circumstances provided in articles 65-67 UK needs to take into account living conditions and education of the minor, influence on it of adults, the level of development and other features of his personality.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info