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of December 26, 2003 No. 16

About practice of application by courts of Ukraine legislations on repayment and removal of criminal record

Studying of practice of application of the legislation on repayment and removal of criminal record demonstrates that courts mainly correctly determine availability or absence at person of criminal record and the corresponding consequence in law. Generally according to the law also the issue of removal of criminal record is resolved. At the same time in case of application of this legislation some courts make mistakes that sometimes leads to violation of legitimate rights and interests of the condemned persons.

Along with it in connection with adoption in 2001 of the new Criminal code of Ukraine (further - UK) in court practice questions concerning content of its separate provisions which concern repayment and removal of criminal record arose.

For the purpose of ensuring identical application of the specified legislation the Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that the criminal record is legal status of person which arises in connection with his condemnation to criminal penalty and under the conditions specified in the law involves approach for it certain negative effects and that the correct application of precepts of law about criminal record, its repayment or removal is important for permission of criminal cases in case of committing by person of new crime.

2. The criminal record can be considered in case of qualification of return to crime or in case of purpose for it of punishment, and also in other cases provided by UK and the laws of Ukraine (restriction of opportunity to hold certain positions or to be engaged in certain activities, application of parole from serving sentence, amnesties and so forth).

It is necessary to consider that according to the item of 11 section II "Final and transitional provisions" UK of 2001 governed concerning repayment and removal of criminal record, the established UK of 1960, extend to persons who committed crimes before entry into force of the new Code, except as specified, when according to its provisions criminal liability of these persons is mitigated.

Having determined that the previous criminal record is extinguished, courts shall specify in sentence that person has no criminal record, with reference to the relevant standards of UK of 1960 or UK of 2001 depending on under what law this issue is resolved.

4. Draw the attention of courts to what UK of 2001 contains as general regulations about removal and repayment of criminal record (article 88-91 UK), and regulations on features of application of this institute to persons who committed crimes before achievement of eighteen-year age by them (Art. 108 of UK).

With respect thereto courts need to find out in each case at what age-faced the previous crime was committed. If person was condemned for the crime committed aged up to 18 years earlier shall be applied to it provision not only articles 88-91 UK, and and article 108 UK.

Courts shall consider that in Art. 55 of UK of 1960 the repayment period of criminal record was established depending on type of the imposed penalty or from the term of actually served sentence while UK of 2001 - in dependence not only on type of the imposed penalty (Items 1-6 of Art. 89 of UK), and and on severity of the committed crime (Items 6-9 of the specified Article), i.e. irrespective of terms of the penalty imposed by court in the form of restriction or imprisonment and actually served sentence.

5. According to p.1 Art. 88 of UK person is recognized having criminal record, from the date of the introduction in legal force of conviction and before repayment or removal of criminal record. Provisions of the law on criminal record extend to all term of serving as the main, and additional punishment, and in the cases provided by Items 5-9 of the Art. 89, Items 2-4 of the p. 2 of Art. 108 of UK - and for certain term after serving sentence.

6. In case of permission of question of repayment of criminal record legal value has not only availability of the court verdict by which person is found guilty of crime execution, and both the bases and time of its release from serving sentence as exactly from now on in the cases provided by the law person is considered not having criminal record, or the term during which it will be considered having criminal record begins to be estimated.

According to the p. 3 of Art. 88 of UK persons condemned according to the court verdict without assignment of punishment or which are completely exempted from punishment or such which served sentence for act which crime and punishability is eliminated with the law are recognized not having criminal record. At the same time it is necessary to consider that UK of 2001 is decriminalized considerable part of acts which on UK of 1960 were recognized criminal.

Also persons who were rehabilitated are recognized not having criminal record according to the p. 4 of Art. 88 of UK of 2001, i.e. N962-XII "About Recovery of Victims of Political Repressions in Ukraine" are acknowledged unfairly repressed in judicial or extrajudicial procedure with renewal in all rights, including based on the Law of Ukraine of April 17, 1991.

Explain to courts that according to Art. 5 of UK of 2001 the regulations of item 9 of Art. 89 of UK of 2001 that persons condemned for especially serious crime are recognized not having criminal record if they within eight years from the date of serving sentence (the main and additional) do not commit new crime extend to persons condemned on UK of 1960 to imprisonment for the term of more than ten years and concerning which according to item 8 of Art. 55 of this Code the issue of repayment of criminal record was resolved by court.


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