Ruling on Enforcement of Compulsory Measures of Educational Character: Cases, Grounds of Adoption and Standard of Proof

Abstract

The article deals with the a) cases of passing a ruling to enforce compulsory measure of educational character (CMEC) by the court of first instance from the standpoint of their interconnection with final decisions of the pre-trial investigation stage; b) grounds for adoption of a ruling to impose CMEC by the court of first instance with regard of applicable standard of proof. Authors concluded that the court of first instance passes the ruling to enforce CMEC only in case a motion to impose CMEC was sent to the court from the pre-trial investigation stage. Such situation is possible solely in criminal proceedings in respect of a minor that committed socially dangerous act having reached the age of eleven and prior the age of criminal responsibility. Factual circumstances of criminal proceedings to be proved are the grounds for rendering a ruling to enforce CMEC. Approximate list of the circumstances is given in Art. 91 Para. 1 and Art. 485 of the Code of Criminal Procedure op Ukraine (CCP of Ukraine). Given that the ruling to enforce CMEC is a decision where the minor's involvement in the commission of the alleged act shall be shown, the court shall be bound by the beyond a reasonable doubt standard. However, given the provisions of Arts. 17, 485 and 501 of CCP of Ukraine is it demonstrated that the questions arising while deciding whether to enforce CMEC shall be addressed by the court with account of probabilistic nature of circumstances to be ascertained. In addition, the law does not require the prosecution party to prove all circumstances specified in the law beyond a reasonable doubt.