ON THE ISSUE OF AMNESTY AND PARDON IN CRIMINAL LAW

ABSTRACT

The article deals with such criminal law phenomena as amnesty and pardon. An important goal of the state in the field of criminal law is the fight against crime, which includes not only punitive measures, but also incentive measures. In addition, the article shows the differences between the two phenomena. The purpose of the article is to study the conditions of application, characteristic features of amnesty and pardon in criminal law of Russia. At the same time, the article examines the origins of these legal institutions.

Keywords: amnesty, pardon, punishment, encouragement, crime.

The first historical indication of the use of amnesty as a state measure can be traced back to the history of ancient Greece, where amnesty was applied by decision of the people or through the senate. For the first time, according to the author P. A. Lyubimov, Trasibulus resorted to amnesty, who, after the expulsion of 30 tyrants, not wanting new repressions, persuaded his supporters to use amnesty.

In the historical aspects of Rome, one can see that the development of political life led to the need to construct an amnesty as a legislative act, in the promulgation of which the people took part through popular assemblies. In the imperial era, we observe the fall of this institution, it is revealed in the broad right of collective pardon, the use of which begins to serve as a reinforcement of imperial power and the rise of religious feelings as a pillar of the theocratic Byzantine state. All rights of pardon and amnesty pass to the emperor as a sovereign, and this fullness of power is a model for the monarchs of Europe at the beginning of the new time.

The term "amnesty" was first introduced in the 17th century, before that is had the name «abolition». Amnesty stopped not only the crime itself, but also all the restrictions associated with the crime, quite often it was carried out on Easter, which was considered a divine holiday.

Now amnesty is present in the criminal system of a small number of states, most often only pardon is used there. The institutions of amnesty and pardon are used differently in foreign countries, someone uses these two institutions at once, and in some countries, only the institution of pardon is used, but it usually includes the institution of amnesty [4, p. 7].

As you know, modern society is striving for the humanization of criminal law in order to ensure the effective implementation of the internal policy of state power. This trend is enshrined in the constitution due to the basic principle of the state, the idea of ​​which is that the rights and freedoms of a citizen are the highest value in the state. That is why, in addition to the institution of punishment, such incentive institutions as the institution of amnesty and pardon are used.

An amnesty is a full or partial exemption from criminal punishment or its mitigation. It is applied to an individually indefinite circle of persons, exclusively by public authorities. In addition, an amnesty can remove a conviction from a convicted person, or replace the unserved part of the sentence with a milder one, or release him from additional punishment [1, p. 7]. Such a procedure is carried out only with the consent of the person to be released.

The Constitution of the Russian Federation defines the powers of the state body that implements the amnesty. To the powers of the State Duma of the Russian Federation in accordance with paragraph “e” of Part 1 of Art. 103 refers to the announcement of an amnesty. The act of amnesty is adopted at a session of the State Duma of the Russian Federation and the issue is resolved by a simple majority of votes. After voting, the chairman of the State Duma of the Russian Federation signs an act, which comes into force after the official publication [2, p. 31]. The amnesty corresponds to the principles of humanism, which manifests itself in the form of state incentives in relation to subjects who have violated the law.

The declaration of amnesty, in most cases, is carried out in connection with some important event for the state. The last amnesty took place in 2015 in connection with the 70^th anniversary of the victory in the Great Patriotic War, which led to the release from criminal punishment of persons sentenced to imprisonment for the first time for intentional crimes of small and medium gravity (persons subject to release indicated in the resolution of the State Duma) [3, p. 31]. At the present time, the issue of amnesty is relevant, since, as mentioned earlier, the last amnesty was carried out almost 7 years ago. The 77^th anniversary of victory in the Great Patriotic War could become a landmark event.

The following persons are authorized to initiate the issuance of an amnesty act: the President, the Government, an association of deputies or factions, as well as individual deputies and other entities.

An important point is that the amnesty does not apply to crimes committed after the issuance of the amnesty act. That is, if the crime begins before the issuance of the act, and the moment of its completion occurs after the act enters into force, then an amnesty in this case is not allowed (for example, crimes that are of a continuing nature).

Pardon is another tool that allows you to release a person from criminal liability. It is carried out in relation to an individually defined person, who can be exempted from criminal punishment in whole or in part, or his punishment is mitigated. Such a measure is applied by the head of state – the President of the Russian Federation on the proposal of a special pardon commission [5. c. 88]. Pardon commissions are created in all constituent entities of the Russian Federation. They consider the petitions of convicts, draw up recommendations and then send them to the highest official of the constituent entity who puts forward ideas about the expediency of issuing these acts to the President of Russian Federation.

When the commission considers an application for pardon, it takes into account only certain characteristics such as the behavior of the convicted person during the served term, the nature and degree of social danger of the crime, the term of the served sentence, the state of health, age, and also whether an act of amnesty or pardon was previously applied, and other relevant circumstances.

The practice of pardon was previously carried out much more often than at the present time, so, pardon is considered as an exceptional measure now. For example, in 2014, Vladimir Putin pardoned five people out of 4,700 petitions filed. Such a decline in acts of pardon is connected with a change in the pardon procedure, its significant complication has occurred which manifested itself in an increase in the instances through which a petition must pass. One of the immediate acts was the well-known pardon in 2019 by Vladimir Putin of the Israeli woman Naama Issachar, who was convicted of drug smuggling and sentenced to seven and a half years in prison. The release, according to the media, is associated with political benefits for both countries.

It should be noted that not only in Russia, but also in other countries, the practice of using amnesty is limited or absent. In particular, the considered legal institution does not exist in the countries of the Anglo-Saxon legal family, as well as in some countries of the Romano-Germanic legal family, for example, in Germany, Spain, Estonia. The negative attitude towards amnesty in many countries is associated with the fact that, due to the excessive use of this institution (in particular, in France), this led to virtual impunity for criminals, and later to public unrest.

Amnesty and pardon, despite some similarities, are different phenomena. Firstly, an important criterion for distinguishing is the circle of persons to whom these incentive measures are applied. In accordance with the Criminal Code of the Russian Federation, an amnesty is carried out for an indefinite circle of persons, and an act of pardon exempts a specific convict from criminal punishment. The second criterion is the subject of decision making. As mentioned earlier, the act of pardon is under the exclusive jurisdiction of the President of the Russian Federation, in addition, special commissions are created and other bodies and institutions of the criminal correctional system also carry out certain activities. The decision on amnesty is made only by the State Duma. The third criterion is the legal consequences of the application of amnesty and pardon. In this case, with an amnesty, an additional consequence in relation to the pardon is the release from criminal liability (for persons not yet convicted by the court) and from additional punishments. That is, an amnesty is a more democratic measure, providing more options for mitigating punishment. The fourth criterion is the will of the person. When pardoning, the will of the person is clearly defined; without the convict performing certain actions (petition for pardon), the person will not be released. With an amnesty, a specific convict cannot influence the announcement of an amnesty.

The question of the effectiveness of these institutions is highly controversial. Over the past two decades, the criminal policy of Russia has changed radically from the tightening of criminal penalties in the Soviet period to the liberalization and weakening of punitive measures. This significantly improved the functioning of the Criminal Code of the Russian Federation. Nevertheless, the application of the institute of amnesty and pardon should be worked out and regulated in detail. An unsuccessful amnesty and pardon can lead to an increase in recidivism, loss of public confidence in government, and so on. [6, p. 22] Thus, when carrying out these procedures, a qualitative analysis of the situation in the country, an assessment of the needs of society and the state as a whole is necessary.

References:

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