Exemption from serving a sentence with probation for pregnant women and women with children under the age of seven as a means of probation: specific problems of application practice
Authors: Bilas Ya.Yu. 
Published: October 2024

The article highlights certain problems of the judicial practice of applying the institution of exemption from serving a sentence with probation for pregnant women and women with children under the age of seven as a means of probation. It was established that, unlike the general rule on exemption from serving a sentence with probation (Article 75 of the CC of Ukraine), the provisions of Article 79 of the CC of Ukraine are mainly focused not on the possibility of correcting a person without isolating him from society, but first, on ensuring the interests of the child. Courts adhere to the same position when, releasing those specified in part 1 of Article 79 of the CC of Ukraine, persons from serving a sentence with probation, do not motivate the possibility of correction of the specified category without isolation from society. It was found that in many cases the courts also do not consider the interests of the child when deciding provided for in Article 79 of the CC of Ukraine. Based on the analysis of law enforcement practice, the author concluded that courts follow the trend of “automatic” appointment of the institute under investigation, given the fact that the guilty party is pregnant or has a dependent child under the age of seven. The correctness of the legal position of the Supreme Court is emphasized, according to which the “automatic” application by the courts of the norm of Article 79 of the CC of Ukraine on the basis of the offender belonging to the category of persons provided for by the specified norm, is inadmissible, since its application must be preceded by an assessment of the person of the offender, the possibility of her correction without isolation from society and ensuring the interests of the child. It has been established that by fixing the provisions regarding the probationary period, which is set for those released from serving a probationary sentence under Article 79 of the CC of Ukraine, the legislator did not specify its minimum duration, constructing the relevant norm in such a way that it could be individualized depending on the age of the convicted child. At the same time, the courts in their decisions do not always indicate the specific age of the child, which makes it impossible not only to correctly determine the time limits of the examination period, but also to apply the investigated institute in general. The author found that some courts incorrectly apply the norm of part 1 of Article 79 of the CC of Ukraine regarding the determination of the probationary period, as they establish a probationary period that exceeds the time during which a woman can be dismissed from work in connection with pregnancy, childbirth and before the child reaches the age of seven. It was concluded that the correct practice of applying the provisions of Article 79 of the CC of Ukraine, means of probation are not only the determination of the state of pregnancy or the presence of a minor child in the convicted person and the determination of the probation period until the latter reaches the age of seven, but also taking into account the circumstances of the committed criminal offense, the guilty party and the interests of the child.