On April 26, 2024, a wonderful and important event took place – the International Scientific and Practical Conference "Probation reform: an opportunity to choose the future", organised by the Ministry of Justice of Ukraine, the State Institution "Probation Centre" and the Penitentiary Academy of Ukraine with the support of the EU Project Pravo-Justice. The video of the conference on probation in Ukraine is fascinating. Several hours of highly informative speeches and discussions by judges, prosecutors, and probation officers. Therefore, I would be happy to share my impressions briefly.

Probation was presented at the conference as something new, entirely new.

However, probation was "young" in the mid-nineteenth century. Moreover, as early as the 1750s, the English judge Henry Fielding (incidentally, one of the forefathers of the modern European police) put forward reasoned proposals for what we call probation today. The cruelty of English criminal law at that time is well known, but it is worth recalling how and for what people were punished in Ukraine in the mid-eighteenth century. In fact, probation began in the early 1820s, when the Warwickshire Quarter Sessions and judges Matthew Hill and Edward Cox started imposing formal sentences of one day in prison on certain juvenile offenders, with the simultaneous transfer of such offenders under the supervision of their employers or parents.

In many ways, the conference is dedicated to probation as a new type of punishment, which I am partially sceptical about. Why? There are several reasons for this.

Probation is a "method of working with criminals". Probation is a concept that has its origins in the recognition of the inability of prisons to rehabilitate deviants. Therefore, the legislator's attempt (and successful attempt) to bring probation under the umbrella of a "full-fledged" punishment raises critical questions.

According to international experience, the first component of the concept of "probation" is the conditional non-application of imprisonment for individual criminals who do not pose a major threat to social relations. Within the definition of probation (UN, 1951), we can speak of a conditional one:

• suspension of criminal proceedings;
• non-conviction of a criminal offence;
• non-application of criminal punishment.

In short, probation is a tool to eliminate the stigma of deviants through the stigma of "punishment". Therefore, probation as a full-fledged punishment is the last thing that should be analysed in terms of probation. Therefore, probation as a punishment - even in the light of international experience – is a deviation from the basic concept of probation.

Yes, time passes and the world changes. So do the methods of social control over deviants. But we need to talk about this. And I will say more at the end of these theses.

Here, I can only remind you that in the 1990s, under the influence of financial constraints, probation began to be seen not only as an object of certain transformations and reform steps. The slogan "save taxpayers' money" became perhaps the most important factor that politicians in modern election campaigns began to focus on when shaping the foundations of prison policy in many modern countries.

Probation has also come to be seen as a tool used to adjust the state's punitive policy. Instead of using extremely costly imprisonment, politicians and officials from various authorities began to use "cheaper" probation, which was mainly due to the penal crisis and overcrowding in penitentiary institutions, rather than philanthropic considerations.

Can probation be a punishment?

It seems to us that this question may remain unanswered because today we can discuss the expediency of a more complex and comprehensive system of response to crimes, which is already enshrined in the legislation of many foreign countries. Many years ago, I emphasized that the traditional concept of "execution of sentences" is gradually being replaced by "management in the area of execution of sentences".

Therefore, the introduction of probation as a punishment does not in any way indicate the autonomy of this kind of punishment. Rather, it indicates that Ukrainian criminal law is slowly but surely beginning to reflect the long-standing trends of social control over deviants.

Probation was often presented as a part of the penitentiary system in the speakers' speeches. In fact, this is true. However, I must remind you that at one time, when choosing a combined or separate model of state management of the prison system, Ukraine chose the second option, trying to distance probation from prison as much as possible, and this was done. Therefore, such a clear prison "echo" raises questions.

Sometimes the conference on probation was full of clearly utopian ideas. I don't understand why speakers talk about a "society free of offenders", "society without bars" or "society free of state coercion". From this perspective, I must admit that Ukrainian society (just like any other) is not a society of saints. It is not an ideal, exemplary monastery. I think that no one has refuted Durkheim's ideas yet. Abolitionism is very attractive, but, as time has shown, it is a theory that needs evidence, not slogans.

The issue of "correction", as it was presented by the conference participants, could not but provoke discussion. Robert Martinson and his revolutionary article, which turned 50 this year, unfortunately, has not been widely used by judges. Therefore, I cannot but note the right emphasis made by Mr Oleg Yanchuk that "we do not change a person; we create conditions for a person to change himself". And this is important, and something that many judges forget in their public speeches.

Exaggerating the importance of the idea of reforming criminals is as fatal to the vitality of the state as being too harsh on an occasional criminal or cruel to an incorrigible criminal. The idea of a goal limits itself (Franz von Liszt).

Back in 2007, my colleagues and me, as part of a UNICEF project, were developing one of the first laws on probation. When I wrote the lines that "the purpose of probation is to ensure the safety of society" and so on, the concept of public safety meant something other than what is not related to probation. Therefore, probation as a tool for "patriotic education of collaborators" is at least a debatable issue.

Prison overcrowding seems to have been mentioned by inertia. I would like to remind you that as of January 2022, the occupancy rate in Ukraine was 54%. Even if we consider the CPT's remarks following its visit to Ukraine in 2023 that the last visit had resulted in a violation of the "gold standard" of 4 sq. m., the partial overcrowding of Ukrainian prisons is not about probation but about management in the penitentiary system itself.

Finally, I would like to switch on the political scientist's "mode".

Any purely legal discussions about prison reform and probation among lawyers usually do not tolerate critical views on the essence of modern social control. Meanwhile, the "political capture of the body" was the essence of social control in the nineteenth century, the boundaries of which are difficult to define.

It is obvious that the "political capture of the body" in the twenty-first century is actively continuing in line with the development of social structures and the emergence of new horizontal and vertical social relations and social connections, which give grounds to speak of a further, more mobile, flexible and technological incarnation of society.

Therefore, we must not forget important things: the seemingly active alternatives to imprisonment, as time and practice have shown, are very frequently passive applications of imprisonment, which entails an even greater diversification of social control and the involvement of new groups of deviants, both real and declared, under the umbrella of social control mechanisms.

Globalization changes do not leave aside probation as a concept, as a type of activity, and as a method of working with criminals. The ideological and conceptual 'dehydration' of probation in such conditions will continue, which cannot but arouse interest, or rather concern, among those working in this area.

And especially during and after the war.

These trends should also be considered by domestic scholars and practitioners of the criminal justice system to avoid unnecessary formalism in the development of relevant draft laws. This, in our opinion, is the main basis for analysing the concept of probation from a global perspective