MEASURE OF PUNISHMENT: SOME PROBLEMS OF THE DEFINITION AND ESTABLISHMENT IN CRIMINAL LAW OF UKRAINE

Abstract

the paper is focused on studying such a category of modern criminal law as the «measure of punishment», which demonstrates the duration and number of restrictions on the rights and freedoms of the convicted, inherent in each specific type of punishment in general and individually determined punishment (established in the conviction of the court) in particular. Expressed supposition that the introduction of the category of the measure of punishment is due to the necessity of observing the basic and universally recognized in international law principles of treatment of persons within the criminal law of the state, who are prosecuted.

Approaches to theoretical interpretation of the measure of punishment have been revealed. Its correlation with the principles of criminal law has been demonstrated. It has been stated that the category of the «measure of punishment» is not sufficiently studied in the science of criminal law.

The advantages and disadvantages of using the category of the «measure of punishment» within judicial practice have been revealed. It has been proved that its use contributes to the certainty, specificity, predictability of the court decision. At the same time, the measure of punishment is not the same category of «punishment», since it is intended to reflect the quantity and quality of restrictions on the rights and freedoms of a person convicted by the court. It has been established that the measure of punishment determined by the court is not unchanged. It can be adjusted while executing and serving a sentence (for example, by conditional early release from punishment, replacing the unserved portion of the sentence with a milder one, etc.).

The authors have specified the place of the category of the «measure of punishment» in the current criminal and criminal procedural legislation of Ukraine. The correlation between the category of the «measure of punishment» and the term «length of punishment or amount of penalty» has been demonstrated. It has been proved that it covers not only the length of time and the amount of penalty, but also the type and amount determined by the court.

Special attention has been paid to establishing the correspondence between the measure of punishment envisaged in the Ukrainian legislation and the possibilities of attaining the objectives of punishment during its execution, limited by these amounts. The problem of establishing the terms of criminal penalties in the legislation of Ukraine (imprisonment, restriction of freedom, arrest, etc.) has been analyzed. The authors have specified the problems of recognizing the periods of time as completed sentence, when a person has not actually experienced it. The authors have emphasized the connection of the effectiveness of the process of a person’s correction during the execution of a criminal punishment with the observance of the principle of certainty of punishment.