Exemption from Punishment and its Serving: Material and Procedural Legal Aspects

Abstract

The article analyses the institution of exemption from punishment and its serving in the criminal proceedings of Ukraine. The authors emphasize the interdisciplinary nature of this institute, which is a structural element of criminal, criminal executive and criminal procedural law. Taking this into account, according to the authors, it is necessary to harmonize the norms of the Criminal Code of Ukraine, the Criminal Procedural Code of Ukraine and the Criminal Executive Code of Ukraine, which are components of this specified legal institute. It is pointed out the confusion in the terminology in the criminal law norms, which causes the lack of unity of judicial practice and various wordings in the final part of guilty verdicts. The judicial practice of application of various types of exemption from punishment and its serving are analysed. Examples of court decisions which testify to the unequal application of criminal law norms regulating exemption from punishment and its serving are given. The contradictions of certain criminal law norms, for example, articles 85 and 86 of the Criminal Code of Ukraine, are emphasized. The authors come to the conclusion that in the case of the application of the law on amnesty or the act of pardon, as well as in the case of a person suffering from a serious illness, should be applied an exemption from serving a sentence, but not an exemption from punishment. It is noted that the fundamental difference in the legal consequences of exemption from punishment and exemption from serving a sentence is the occurrence of a criminal record, because persons convicted by a court verdict without a punishment or with an exemption from punishment are recognized as having no criminal record. Based on the analysis of grounds for exemption from punishment at the stage of passing a guilty verdict and the judicial practice of their application, the opinion about the actual existence of two separate types of guilty verdict (a verdict without punishment and a verdict with exemption from punishment) is expressed. It is emphasized that today the courts pass verdicts without assigning punishment, mainly, only in the case of release from punishment to a minor with the application of coercive measures of an educational nature to him. The own vision of the essence of exemption from punishment and exemption from serving punishment is proposed.