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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of March 29, 2012 No. 1

About practice of application by courts of Articles 86, 88, 89 Criminal codes of the Republic of Belarus providing possibility of release of person from criminal liability

(The last edition from 31-03-2016)

For the purpose of ensuring the correct and uniform application by courts of regulations of the Criminal and Criminal procedure codes of the Republic of Belarus providing possibility of release of person from criminal liability with attraction it to the administrative responsibility in connection with active repentance or conciliation with the victim, the Plenum of the Supreme Court of the Republic of Belarus decides:

1. Draw the attention of courts that application of the Art. of the Art. 86, 88, 89 UK providing possibility of release from criminal liability of person who made not constituting big public danger or less serious crime is allowed in the presence of the sufficient data testimonial of lack of need of application to the person accused of punishment or other measures of criminal liability, on condition of compensation of the caused damage, smoothing down of the harm done by crime, accomplishment by the person accused of other conditions containing in these regulations.

2. Provide to courts individual approach to the solution of questions of release of persons accused from criminal liability with administrative prosecution, transfer of the minor under observation of the parents or persons replacing them and also in connection with active repentance or conciliation with the victim.

In the presence of the conditions of release of person from criminal liability provided respectively the Art. of the Art. 86, of 88, 89 UK and also the p. 4 of Art. 30 of the Code of Criminal Procedure, courts should consider specific circumstances of crime execution, behavior of person both to, and after its making, the data characterizing the identity of the person accused.

3. Release from criminal liability on the basis specified in Art. 86 of UK can take place if by court it is determined that for correction of the person accused and the prevention of making of new crimes by it there is enough application of one of the measures of administrative punishment specified in the p. 2 of Art. 86 of UK. However according to the p. 3 of Art. 86 of UK person who made the act attracting criminal liability on the basis of administrative pre-judiction cannot be exempted from criminal liability.

Resolving issue of possibility of release from criminal liability on this basis, the court needs to consider the relevant provisions Administrative Code setting restrictions in application of separate types of administrative punishments (for example, Art. 4.6 the Administrative Code concerning person who committed crime aged up to eighteen years).

4. Draw the attention of courts that person can be exempted from criminal liability in connection with active repentance with set of the conditions specified in Art. 88 of UK that is when person not only indemnified the caused loss or paid income gained in the criminal way or otherwise smoothed down the harm done by crime, and also brought into the deposit account of the body conducting criminal procedure, criminal and legal compensation in the amount of fifty percent of the damage (harm) caused by crime, but at least thirty basic sizes but also after crime execution voluntarily, irrespective of motives, pled guilty (Art. 169 of the Code of Criminal Procedure) or actively promoted identification of crime.

Active contribution can be expressed to identification of crime in the voluntary actions of person who committed crime, directed to assistance to the body conducting criminal procedure in establishment of circumstances of crime execution, in assistance to search and detection of proofs or their direct provision (for example, in issue of tools, means, crime objects), in exposure of assisting offenders, etc.

The decision on release of person from criminal liability in connection with active repentance shall be based on conviction of court that the measures taken by the person accused in pursuance of these conditions demonstrate his frank repentance.

5. With the courts which were injured UK in relation to provisions of Art. 89 it is necessary to understand free and voluntary settlement of the conflict which arose in connection with crime execution between the person accused and the victim with their subsequent appeal to court with the statement for conciliation and request as conciliation of person who committed crime to exempt the person accused from criminal liability.

The statement for conciliation can be both written, and oral. The written application is subject to attaching to the criminal case file, and oral is entered in the protocol of judicial session.

Resolving issue of release from criminal liability in connection with conciliation with the victim, the court needs to check whether conciliation is voluntarily reached, whether in complete amount and what method smoothes down the harm done by crime.

Release from criminal liability based on Art. 89 of UK is possible if conciliation of the person accused with the victim is reached before removal of court to the consultative room for the resolution of sentence. It can take place on criminal cases of both public, and private and public accusation including when criminal case of private and public accusation was brought by the prosecutor according to the p. 5 of Art. 26 of the Code of Criminal Procedure.

6. Explain to courts that if from crime several persons are recognized as the victims, the solution of question of release of the person accused from criminal liability is possible provided that conciliation is reached with each of the victims.

The representative of the victim has the right to conciliate with the person accused on behalf of the principal only in cases when it is specially stipulated in the issued power of attorney.

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