Publication date: 03.07.2024
active and purposeful military lawyer with more than 4 years of experience
Mitigation: When justice gives a second chance
Criminal justice is often faced with a difficult balance - on the one hand, the need to protect society from criminals, and on the other - the need for justice and rehabilitation. One of the tools that allows you to find this balance is the possibility of imposing a milder punishment than the law provides. This mechanism, although relatively rarely used, can be important in ensuring humane, proportionate and effective criminal justice.
Legal basis for mitigation of sentence
According to the Criminal Code of Ukraine, the court can impose a punishment lower than the lowest limit established for this type of punishment, or switch to another, milder type of punishment, not specified in the sanction of the article of the Special Part of the Criminal Code of Ukraine as an alternative. For this, the degree of severity of the committed crime, the identity of the culprit and other circumstances of the case that mitigate the punishment should be taken into account.According to Article 69 of the Criminal Code of Ukraine, the court may impose a lighter punishment than provided by law, in the presence of the following circumstances:
if a less severe type of punishment corresponds to the degree of gravity of the crime, the person of the guilty person and the circumstances of the case that mitigate the punishment;
if a less severe type of punishment is sufficient to correct the person and prevent him from committing new crimes.
In fact, this means that the court can go beyond the scope of the sanction provided for in the article of the Special Part of the Criminal Code of Ukraine and impose a milder punishment, guided by the principles of justice, expediency and individualization of punishment.
Key arguments in favor of a reduced sentence
The application of a milder punishment than provided by law can be justified by several important factors:
Individualization of punishment
Each crime and criminal is unique, and the typical sanctions established by the legislator do not always allow the court to take into account all the circumstances of the case. The imposition of a milder punishment enables the court to adapt the sentence to the specific situation, characteristics of the criminal, his previous behavior, the degree of social danger of the committed act, etc.This ensures justice and allows choosing the punishment that will be the most effective for correction and resocialization of the convict.
Individualization of punishment
Each crime and criminal is unique, and the typical sanctions established by the legislator do not always allow the court to take into account all the circumstances of the case. The imposition of a milder punishment enables the court to adapt the sentence to the specific situation, characteristics of the criminal, his previous behavior, the degree of social danger of the committed act, etc. This ensures justice and allows choosing the punishment that will be the most effective for correction and resocialization of the convict.
Prevention of recidivism
Numerous studies show that excessively harsh punishments can backfire and increase the likelihood of recidivism. Long-term imprisonment, especially for minor crimes, often leads to the degradation of the personality, loss of social ties and skills, which complicates further resocialization. Softer sentences, on the other hand, allow the convict to maintain his ties with society, support his resocialization and reduce the risk of committing new crimes after release.
Economic feasibility
Detention of convicts in places of deprivation of liberty is extremely expensive for the state. In addition, long-term imprisonment entails large social costs associated with the degradation of the individual, the destruction of families, and the loss of work capacity. The use of alternative, milder punishments, such as fines, community service, conditional sentencing, etc., allows to save public funds and direct them to finance resocialization programs, crime prevention and victim support.Humanization of criminal justice
Modern trends in the field of criminal law are aimed at the humanization of punishments and the transition from a punitive and repressive to a restorative model of justice. Communicating sentences, especially for minor crimes, promotes greater respect for the human dignity and human rights of convicts, reduces the negative impact on their mental health and gives them a chance to reform.
The practice of applying milder punishments
Despite the obvious advantages, the practice of imposing milder punishments than prescribed by law is not widespread in Ukraine. According to the Judiciary of Ukraine, in 2021 the courts applied this rule in only 3% of cases.
Most often, judges resort to mitigating sentences for property crimes (theft, fraud), drug trafficking crimes, and minor violent crimes. The key factors influencing such a decision are often sincere remorse, lack of criminal record, positive character, marital status, health status and other mitigating circumstances.
At the same time, it should be noted that when imposing a milder punishment, the courts still try to adhere to the limits established by the law. In most cases, we are talking about a slight reduction of the term of imprisonment or its replacement with a milder type of punishment (for example, a fine or community service).
Completely going beyond the sanction of the article happens much less often.You may be interested in reading articles on such topics as:адвокатские запросы адвокатский запрос ответ на адвокатский запрос требования к адвокатскому запросу непредоставление ответа на адвокатский запрос сроки ответа на адвокатский запрос адвокатский запрос это рассмотрение адвокатского запроса об адвокатском запросе адвокатский запрос образец образец адвокатского запроса образец отказа на адвокатский запрос адвокатский запрос срок рассмотрения ответственность за непредоставление ответа на адвокатский запрос адвокатский запрос срок
