Compulsory Educational Measures Applied to Minors: Debatable Issues of Legal Regulation

Abstract

The need to find and develop humane and adequate measures to combat juvenile delinquency, to ensure strict individualisation in the choice of means of influencing children-offenders in combination with maximum respect for their legitimate interests, is indisputable, which is the relevance of this paper. The purpose of this study was to identify the shortcomings in the construction of norms regulating the closure of criminal proceedings against minors in connection with the application of compulsory educational measures to them, to provide recommendations for improving the relevant norms of criminal and criminal procedural legislation and the practice of their application. During the study, various methods of cognition were applied: dialectical, comparative, modelling, system-structural analysis, and dogmatic. It was proved that when applying compulsory educational measures, it is necessary to find out the attitude of a minor towards what they have done. It was noted that the effectiveness and efficiency of transferring a minor under supervision depends entirely on the capabilities and responsibility of the person assigned to supervise the minor. Therefore, even though the law does not require the consent of a legal representative to such a transfer, such consent is factually crucial. The legislators’ approach was criticised, which, instead of clearly defining the lower and upper limits of the duration of such measures, is limited to indicating that the duration of compulsory educational measures prescribed in clauses 2 and 3 of Part 2 of Article 105 of the Criminal Code of Ukraine is established by the court that appoints them. It was stated that the optimal period for these measures is one, maximum two years. Therefore, it was proposed to amend Article 105 of the Criminal Code of Ukraine aimed at establishing the period for which compulsory educational measures can be imposed, as well as at determining the circumstances that the court must consider as the basis for choosing one of these measures. It was proposed that the performance of a minor’s obligation to compensate for the damage caused should make provision for the following forms: 1) monetary, 2) in-kind – transfer of property, 3) labour. Furthermore, it was proposed that with these methods it is possible to compensate not only for property, but also for moral damage.