Pre-trial report is advisory in nature, but it is very important for individualisation of punishment - Supreme Court Judge

Nadiia Stefaniv, a judge of the Supreme Court at the Criminal Cassation Court, spoke at the International Penitentiary Forum about cooperation between the judicial and penitentiary systems and the challenges that courts and probation authorities have to overcome in the context of Russia's armed aggression in Ukraine.

One of these challenges, according to the judge, is that due to the full-scale invasion of Russia, the temporary occupation of part of the territory of Ukraine and active hostilities, some penitentiary institutions are unable to contact or bring to trial a person in criminal proceedings. However, close cooperation between local general courts, courts of appeal and the Supreme Court with the penitentiary system helps to find ways to resolve problematic issues, protect the rights of convicted persons, review criminal proceedings within a reasonable time and resolve other procedural issues such as early release from prison or review of a court decision on appeal or cassation.

Nadiia Stefaniv noted that the legal basis for judicial probation is the Law of Ukraine "On Probation", adopted in 2015. After Russia's large-scale invasion, this law has been amended. The speaker elaborated on the changes in the application of the law regarding the three types of probation: pre-trial, supervised and penitentiary.

The Supreme Court judge noted that, by court order, a representative of the authorised probation body prepares a pre-trial report. Such a report provides the court with information that characterises the accused and helps to determine the punishment. In order to make a fair decision and determine the punishment, the court must take into account the information about the accused person: the conditions in which he or she has been and where he or she has lived, positive or negative characteristics, and recommendations of the probation authority. According to the case law of the Supreme Court, the pre-trial report is advisory in nature, but it is very important for individualising the punishment.

In addition, Nadiia Stefaniv focused on the trends in case law relating to supervised probation. She noted that after the large-scale Russian aggression, the Verkhovna Rada of Ukraine supplemented the Criminal Code of Ukraine with articles on crimes against the foundations of national security of Ukraine, in particular Article 111-1 "Collaboration". The judge noted that while the competent authorities develop probation programmes, the courts apply conditional probation programmes when imposing certain obligations on convicted persons under this Article. The speaker gave examples of the obligations imposed by the courts on convicted persons in case of approval of a plea agreement with the prosecution for collaboration. In her opinion, the probation authorities can include the monitoring of the performance of such duties in the tactical plan for the performance of special duties as part of the probation programme.

In conclusion, Nadiia Stefaniv noted that it was not easy to administer justice during the war, nor was it easy to keep prisoners in prisons or detention centres. However, the courts do everything in their power to protect the rights of such persons in accordance with European standards, even in times of war.

Volodymyr Korol, a judge of the Supreme Court at the Criminal Cassation Court, also attended the event.

The International Penitentiary Forum was organised by the Ministry of Justice of Ukraine with the support of the United Nations Office on Drugs and Crime (UNODC) on 21 June 2023.

Photos courtesy of the event organiser.