REPLACING PUNISHMENT WITH A FINE. SOMETIMES IT IS POSSIBLE, SOMETIMES IT IS NECESSARY

Recently, in practice, questions have arisen regarding the possibility of applying to persons serving sentences in the form of correctional labour the replacement of the unserved part of the punishment with a fine, as provided for by Art. 46 of the Criminal-Executive Code of Ukraine (hereinafter—the CEC of Ukraine). In particular, in some cases, courts, referring to the provisions of Art. 82 of the Criminal Code of Ukraine, refuse to apply the named norm on the grounds that the convict, in their opinion, has either not proven their rehabilitation or has not served a specified part of the sentence term.
When considering this issue, in our opinion, one needs to proceed from the following.
Article 46 of the CEC of Ukraine clearly provides that the submission to the court of materials on a convict regarding the replacement of the unserved part of the punishment in the form of correctional labour with a fine is an incentive measure that can be applied by the criminal-executive inspection for exemplary behaviour and a conscientious attitude towards work by a person sentenced to correctional labour. At the same time, compliance with any special procedure, grounds, and conditions established by another law, including criminal law, is not required.
Unlike Article 46 of the Criminal-Executive Code of Ukraine, Part 3 of Article 57 of the Criminal Code of Ukraine provides for the possibility of replacing the entire assigned punishment, rather than just its unserved part.
Therefore, the replacement provided for by Part 3 of Art. 57 of the Criminal Code of Ukraine is one of the grounds for releasing a person from serving a criminal punishment.
A similar release is provided for in another article of the Criminal-Executive Code of Ukraine, namely Part 5 of Article 42. It states that in relation to a person who has become incapacitated after the court’s verdict, the criminal-executive inspection shall submit a motion to the court for the replacement of correctional labour with a fine.
Thus, the replacement of correctional labour with a fine, provided for by Article 46 of the Criminal-Executive Code of Ukraine, and the replacement of correctional labour with a fine, provided for by Part 3 of Article 57 of the Criminal Code of Ukraine, represent completely different legal institutions that are in no way interrelated.
Also, the provisions of Article 82 of the Criminal Code of Ukraine have no relation to the provisions of Article 46 of the Criminal-Executive Code of Ukraine. The replacement of the unserved part of the punishment defined in Article 82 of the Criminal Code of Ukraine is a ground for release from serving a punishment (Section XII of the CC ‘Release from punishment and its serving’).
For the application of the norm of Article 82 of the CC of Ukraine, the mandatory presence of two grounds is required: formal (serving a part of the sentence term clearly defined by criminal law) and material (proving that the person has embarked on the path of rehabilitation).
Unlike the provisions of Article 82 of the CC of Ukraine, Article 46 of the Criminal-Executive Code of Ukraine does not establish such formal and material grounds. Moreover, Art. 82 of the CC of Ukraine directly provides for the application of this type of release to persons serving not correctional labour, but punishment in the form of restriction or deprivation of liberty (Part 1), whereas Article 46 of the Criminal-Executive Code of Ukraine directly provides for the possibility of replacing the unserved part of a punishment in the form of correctional labour specifically with a fine.
Thus, the provisions regarding the replacement of the unserved part of a punishment, defined in Art. 46 of the CEC of Ukraine and Arts. 82 and 57 of the CC of Ukraine, represent legal institutions that are completely different in terms of grounds for application and consequences—those of criminal (Arts. 57, 82 of the CC of Ukraine) and criminal-executive legislation (Art. 46 of the CEC of Ukraine).
Taking this into account, in the practical application of the norms of Art. 46 of the CEC of Ukraine, it is incorrect to refer to Art. 57 or 82 of the CC of Ukraine.
The correctness of this assertion is confirmed by a decision of the Supreme Court of Ukraine, the text of which is provided below.

SUPREME COURT OF UKRAINE
RULING IN THE NAME OF UKRAINE
The panel of judges of the Judicial Chamber on Criminal Cases of the Supreme Court of Ukraine, consisting of:
the presiding judge A.I. Redka,
judges M.Yu. Lavreniuk, V.V. Zaholdnyi
prosecutor O.M. Sukharev
considered in an open court session in Kyiv on 7 February 2008 the criminal case following the cassation appeal of the convict P. against the ruling of the O- district court of Kharkiv dated 14 May 2007 and the decision of the Court of Appeal of the Kharkiv region dated 12 July 2007.
As the case materials indicate, P. was sentenced on 26 January 2006 under Arts. 198, 71 of the CC of Ukraine to 2 years and 1 month of restriction of liberty. By the ruling of the B- district court of the Kharkiv region dated 28 December 2006, the unserved part of P.'s punishment was replaced with correctional labour for a period of 1 year, 3 months, and 15 days, with a deduction of 10 per cent of earnings to the state revenue.
On 14 May 2007, the criminal-executive inspection appealed to the O- district court of Kharkiv with a motion to replace the unserved part of P.'s punishment in the form of correctional labour with a fine, substantiating this by stating that during the serving of the punishment, the convict had not committed any administrative offences, was positively characterised at his place of residence and work, and therefore, based on Art. 46 of the CEC of Ukraine, the inspection considered it possible to apply to him such an incentive measure as the replacement of the unserved part of the punishment with a fine.
By the ruling of the O- district court of Kharkiv dated 14 May 2007, the motion of the criminal-executive inspection of the O- district unit of Kharkiv was denied.
By the decision of the Court of Appeal of the Kharkiv region dated 12 July 2007, the ruling was left unchanged.
In the cassation appeal, the convict P. believes that the court groundlessly refused to satisfy the motion of the criminal-executive inspection, citing as grounds for refusal Art. 82 of the CC of Ukraine, whereas such a type of replacement of the unserved part of a punishment with a more lenient punishment is applied as an incentive, as provided for by Art. 46 of the CEC of Ukraine. He requests the reversal of the court decisions on the denial of the motion of the criminal-executive inspection and the application to him, as an incentive, of the replacement of the unserved part of the punishment in the form of correctional labour with a fine, as provided for by Article 46 of the CEC of Ukraine.
Having heard the rapporteur, the opinion of the prosecutor in support of the cassation appeal, having checked the case materials, and having discussed the arguments of the cassation appeal, the panel of judges believes that it is subject to satisfaction.
As is evident from the case materials, the court, in refusing to satisfy the inspection’s motion to replace P.'s unserved part of the punishment in the form of correctional labour with a fine, referred to the requirements of Art. 82 of the CC of Ukraine.
However, the possibility of replacing correctional labour with a fine as an incentive measure, as provided for by Art. 46 of the CEC of Ukraine, cannot be equated with the norm of Art. 82 of the CC of Ukraine, since the latter provides as a ground for release from serving a punishment the completion of a clearly defined part of the sentence term and applies only to those sentenced to deprivation of liberty and restriction of liberty. For resolving the issue of replacing the unserved part of a punishment in the form of correctional labour with a fine, as provided for by Art. 46 of the CEC of Ukraine, the completion of a specific part of the punishment term is not mandatory.
Taking into account that the provisions defined in Art. 46 of the CEC of Ukraine and Art. 82 of the CC of Ukraine represent legal institutions that are different in terms of grounds for application and consequences, the court should have considered the motion of the criminal-executive inspection in accordance with the requirements of Art. 46 of the CEC of Ukraine; therefore, the court’s ruling and the decision of the Court of Appeal regarding P. are subject to cancellation, and the case is subject to referral for a new judicial consideration. Guided by Arts. 395, 396 of the CPC of Ukraine, the panel of judges
ruled:
to cancel the ruling of the O- district court of Kharkiv dated 14 May 2007 and the decision of the Court of Appeal of the Kharkiv region dated 12 July 2007 regarding P., and to refer the case for a new judicial consideration.
JUDGES:
Redka A.I.
Lavreniuk M.Yu. Zaholdnyi V.V.