ON THE UNEQUAL DISPOSITION OF THE PROBATIONARY SENTENCED OFFENDERS COMPARED TO THE EFFECTIVELY SENTENCED IN JUDICIAL REHABILITATION

Abstract

The issue of the unequal treatment of offenders who have received suspended sentences compared to those serving actual prison terms in the application of judicial rehabilitation under Article 87(1) of the Criminal Code has not been subjected to a comprehensive scholarly analysis in the legal literature. Within the criminal law academic community, only certain legal aspects related to the cumulative conditions prescribed by law for granting judicial rehabilitation have been discussed. Thus, the first prerequisite—which requires that, within three years of the expiration of the sentence imposed by the judge or reduced through community service or a pardon, the convicted person has not committed another crime punishable by imprisonment or a more severe penalty—even though it is grammatically clear—poses significant difficulties in practice when it comes to its interpretation. These difficulties stem from the conflict between Article 88a, paragraph 3 of the
Criminal Code and the fundamental rule of rehabilitation outlined in Article 87, paragraph 1 of the Criminal Code, and boil down to answering the question of when the three-year period under Article 87, paragraph 1 of the Criminal Code begins to run — from the moment the sentence imposed by the judgment, or the sentence reduced through community service or a pardon, expires, but not before the probationary period expires; or from the moment the probationary period expires, provided that no other crime was committed during that period that would have justified the activation of the suspended sentence. Although case law