Serhiy Skvortsov, Assistant Attorney at Barristers Law Firm and Candidate of Legal Sciences, on pretrial probation in criminal proceedings.

PRE-TRIAL PROBATION IN CRIMINAL PROCEEDINGS

Pursuant to Part 1 of Article 370 of the Criminal Procedure Code of Ukraine (hereinafter—the CPC of Ukraine), a court decision must be lawful, well-founded, and reasoned. To ensure compliance with these requirements, in practice, when handing down a sentence, the court often takes into account not only the main circumstances of the defendant’s unlawful act but also additional information about the defendant, in particular regarding the circumstances of their life that may have contributed to the commission of the crime, as well as other information that the court may consider when determining the defendant’s sentence. To this end, the provisions of the Criminal Procedure Code of Ukraine, as well as the Law of Ukraine “On Probation,” provide for a legal institution known as pretrial probation.

Paragraph 25 of Part 1 of Article 3 of the Criminal Procedure Code of Ukraine (hereinafter—the CPC of Ukraine) includes a representative of the probation service among the participants in criminal proceedings.

Pursuant to Part 1 of Article 9 of the Law of Ukraine “On Probation,” pretrial probation involves providing the court with formalized information characterizing the defendant for the purpose of the court’s decision on the measure of his or her liability.

Pursuant to Part 1 of Article 314-1 of the CPC of Ukraine, in order to provide the court with information characterizing the defendant and to facilitate the court’s decision on the measure of punishment, a representative of the authorized probation authority prepares a pretrial report pursuant to a court order.

The pretrial report is prepared for a specific category of persons defined by the Code of Criminal Procedure of Ukraine. Thus, this category includes persons accused of committing crimes of minor or moderate severity, or a serious crime for which the minimum penalty does not exceed five years of imprisonment. It should be noted that a pretrial report regarding defendants aged 14 to 18 is prepared regardless of the severity of the crime committed, except in cases provided for by the Code of Criminal Procedure of Ukraine.

In addition, Part 4 of Article 314-1 of the Code of Criminal Procedure of Ukraine provides an exhaustive list of persons for whom a pretrial report is not prepared. Such persons include:

- a person for whom the prosecutor has filed a motion for exemption from criminal liability;

- a person who is already serving a sentence of restricted liberty or imprisonment;

- a minor in respect of whom the prosecutor has filed a motion to apply compulsory educational measures;

- a minor who has not reached the age of criminal responsibility, where there are grounds for the application of compulsory educational measures;

- a person for whom the prosecutor has filed a motion to apply compulsory medical measures;

- a person who has been granted conditional early release from serving a sentence but has committed a new crime during the unserved portion of the sentence;

- if, during a pretrial hearing, a court decision is issued approving a plea agreement.

Pursuant to Part 2 of Article 9 of the Law of Ukraine “On Probation,” in order to prepare a pretrial report, probation service staff have the right to obtain information about the defendant from enterprises, institutions, organizations, or their authorized bodies, as well as from citizens.

Such a pretrial report must contain certain information about the defendant, including: a sociopsychological profile, an assessment of the risk of reoffending, and a conclusion regarding the possibility of rehabilitation without restriction of liberty or imprisonment for a specified term. The accused may directly participate in the preparation of such a report by providing probation service staff with all necessary information about themselves for the purpose of preparing the pretrial report.

The procedure for preparing a pretrial report is set forth in Order No. 200/5 of the Ministry of Justice of Ukraine dated January 27, 2017, “On Approval of the Procedure for Preparing a Pretrial Report” (hereinafter referred to as the “Procedure”), which sets forth the mechanism for the preparation and submission of a pretrial report to the court by probation service staff.

As previously noted, a court order is the mandatory basis for preparing a pretrial report. On the day such an order is received, a representative of the probation service opens a case file based on the materials of the pretrial report concerning the defendant. All documents generated during the preparation of the pretrial report are attached to the case file containing the materials of the pretrial report concerning the defendant.

Next, the defendant is summoned to the probation agency for an interview. During the interview, the defendant is briefed on the procedure for preparing the pretrial report. The oral information provided by the defendant is recorded in writing by a representative of the probation service, and the defendant is given a copy of this record. Information about the defendant from enterprises, institutions, organizations, or their authorized bodies, as well as from citizens who can provide such information, is obtained by a probation officer by sending requests or during a personal meeting.

If the accused is subject to a pretrial detention measure, a probation officer may visit the pretrial detention facility without special permission, where they have the right to review the materials in the accused’s personal file and obtain from the staff of the pretrial detention facility other information and documents necessary for preparing the pretrial report.

As previously noted, the defendant may participate directly in the preparation of the pretrial report. However, his refusal to participate in the preparation of the pretrial report does not deprive him of the right to review the text of the pretrial report, submit his comments and clarifications, as well as to submit a request to the probation authority expressing his consent to participate in the preparation of the pretrial report no later than the deadline required to exercise this right, taking into account the timeframe for preparing such a report as specified in the court’s ruling.

What, then, is the content of the pretrial report? The structure of the pretrial report is organized in accordance with the form prescribed by the Procedure. However, in practice, when probation staff prepare pretrial reports, one of the key issues is the formulation of their conclusions, the content of which must reflect a comprehensive analysis of the defendant’s situation, the objectivity of the probation service’s position, meet the court’s need for information to render a fair judicial decision, and not violate the constitutional principles of justice.

The Probation Department of the Ministry of Justice of Ukraine has proposed examples of standardized conclusions for pretrial reports, taking into account the results of assessments of the risk of reoffending and the danger to society (including specific individuals). The examples provided are based on established national practices for preparing pretrial reports and international practices.

For example, in cases of low and moderate levels of risk of reoffending and danger to society, the following conclusion may be drawn:

“Taking into account information characterizing the defendant’s personality, lifestyle, and criminal history, as well as the low (moderate —in the case of a moderate risk—probability of reoffending, the probation authority considers that the rehabilitation of the individual without imprisonment or restriction of liberty for a specified period is possible and does not pose a high danger to society (including specific individuals).

In the opinion of the probation authority, community-based sentencing is feasible provided that supervision is carried out and social and educational measures are applied as necessary to rehabilitate the individual and prevent the commission of repeat criminal offenses: (specify measures aimed at addressing the criminogenic needs identified during the risk assessment). If the court concludes that the offender may be released from serving the sentence on probation, the probation authority considers it appropriate to impose obligations on the offender in accordance with Part 2 of Article 76 of the Criminal Code of Ukraine.”

In cases of high (and sometimes moderate) risks of recidivism, and low to moderate (and sometimes high) levels of danger to society, the following conclusion may be drawn:

“Taking into account information characterizing the defendant’s personality and lifestyle, criminal history, as well as the high (sufficiently high—given a moderate risk level) probability of reoffending, the probation authority considers that the rehabilitation of this individual without deprivation or restriction of liberty may pose a danger to society (including specific individuals).

In the opinion of the probation authority, community-based sentencing is possible only in exceptional cases, provided that the probation authority exercises intensive supervision and implements social and educational measures necessary for rehabilitation and to prevent the commission of repeat criminal offenses: (specify measures aimed at addressing the criminogenic needs identified during the risk assessment). If the court concludes that the offender may be released from serving the sentence on probation, the probation authority deems it appropriate to impose obligations on the offender in accordance with Part 2 of Article 76 of the Criminal Code of Ukraine.”

However, when applying these examples in practice, it is essential to bear in mind the unique circumstances of each defendant’s case, in which the proposed conclusions may vary in form and content, as well as the diversity of resources available to different probation units.

Another provision that deserves attention is Part 5 of Article 314-1 of the Criminal Procedure Code of Ukraine, according to which a pretrial report may not be used in criminal proceedings as evidence of the defendant’s guilt in committing a crime. As stated in paragraph 12 of the Information Letter of the High Specialized Court of Ukraine for Civil and Criminal Cases “On the Practice of Courts in Conducting Criminal Proceedings Involving Minors” dated January 16, 2017 No. 223-66/0/4-17, a pretrial report must contain the results of an independent social assessment of the accused and provide the court with additional objective information regarding the risks of the accused reoffending, as well as the possibility of their rehabilitation without deprivation or restriction of liberty (the necessity of isolation), taking into account the social and psychological characteristics of the accused’s personality. The pretrial report is attached to the criminal case file and is taken into account by the court when rendering a verdict.

Given the foregoing, the pretrial report is one of the legal tools that provides the court with additional information when rendering a sentence. However, it should be noted that in practice, probation officers may take a perfunctory approach to their duties when preparing the pretrial report. Consequently, such a pretrial report would not comply with the provisions of Part 1 of Article 314-1 of the Code of Criminal Procedure of Ukraine.