of December 23, 2005 No. 1
About practice of application by courts of Ukraine legislations on release of person from criminal liability
Having discussed practice of release of persons from criminal liability and closing of criminal cases on not rehabilitating circumstances, for the purpose of ensuring the correct and identical application by courts of the penal and criminal procedure legislation by hearing of cases of the corresponding category Plenum of the Supreme Court of Ukraine DECIDES:
Closing of criminal case with release from criminal liability is possible only in case of committing by person of socially dangerous act containing actus reus, provided by UK and in the presence of the legal basis determined in the law which exhaustive list is provided in p.1 Art. 44 of UK, namely: in the cases provided by this Code and also based on the law of Ukraine on amnesty or the act of pardon.
Courts shall differentiate the cases of release from criminal liability and cases provided by UK when in connection therewith the Code it in general is impossible, for example, in case: the low-importance of act (the p. 2 of the Art. 11), making of act in diminished responsibility condition (the p. 2 of the Art. 19), not achievements of criminal liability by person of age (the Art.
22), availability of the circumstances excluding crime of act (section VIII of the General part), and also cases when person is not subject to such responsibility (the p. 2 of the Art. 385, the p. 2 of Art. 396 of UK). Release of person from criminal liability should be otmezhevyvat also from release of the convict from punishment and its serving based on regulations of section XII or Articles 104, of 105, 107 General parts of UK.
2. Such cases of release of person from criminal liability are provided in the General part of UK, in particular:
1) in connection with efficient raskaivaniye (the Art. 45);
2) in connection with conciliation of the guilty person with the victim (the Art. 46);
3) with transfer of person on bails (the Art. 47);
4) in connection with change of situation (the Art. 48);
5) in connection with the termination of prescriptive limits (the Art. 49);
6) the minor using enforcement powers of educational nature (p.1 the Art. 97);
7) the minor in connection with the termination of prescriptive limits (the Art. 106);
8) based on the Law of Ukraine on amnesty (the Art. 86);
9) based on the act of pardon (the Art. 87).
In all listed cases person can be exempted from criminal liability only in the presence of the conditions and the bases determined in UK.
Condition of release of person from criminal liability is making of certain deliberate crime by it irrespective of, it is finished it or not, is made solely or in partnership.
Can be the basis of such release or certain behavior of person after crime execution which the state encourages (efficient raskaivaniye, conciliation of the guilty person with the victim, the termination of criminal activities and the voluntary message about made and so forth), or approach of certain event (for example, change of situation, the termination of prescriptive limits).
In case of permission of question of release of person from criminal liability the court (judge) during preliminary, judicial, appeal or cassation consideration of the case shall be convinced (irrespective of, it arrived in Trial Court with the relevant resolution or with the indictment, and in appeal and cassation courts - with conviction) that the act blamed to person really took place that it contains actus reus and person is guilty of its making and also that conditions and the bases of its release from criminal liability are provided by UK. Only after that it is possible to decide in certain Code of Criminal Procedure procedure the corresponding judgment.
Courts should pay attention that it is possible to make the decision on release of person from criminal liability only in the presence of its consent to solution of the case for the corresponding reason.
3. Release of person from criminal liability in connection with efficient raskaivaniye (Art. 45 of UK) is possible in case of making by it for the first time crimes of small weight.
Person who did not commit crimes earlier is considered the first offender or earlier committed the crime which lost legal value. Making of the lasting or continued crime, two or more crimes of small weight forming set (except for real), cannot be barrier to application of Art. 45 of UK.
The efficient raskaivaniye is that after crime execution person sincerely regretted, actively promoted its disclosure and completely paid the caused loss or eliminated the caused damage.
Lack at least of one of the specified components of efficient raskaivaniye excludes release of person from criminal liability according to Art. 45 of UK. Only cases of crime execution or attempt at it owing to which harm is not done can constitute exception or loss is not caused.
The sincere repentance characterizes the subjective relation of the perpetrator to the committed crime which is shown that it admits the guilt, states regret concerning committed and desire to correct the current situation.
Active assistance to disclosure of crime should be considered provision-faced to bodies of inquiry or pretrial investigation of any help in establishment of the facts of the case unknown to them.
The full recovery of the caused loss or elimination of damage suffered consists in voluntary satisfaction with the guilty person or other persons, in particular parents or close relatives, well-ground claims of compensation of the material and moral damage caused by crime which was injured relatively, its smoothing down in a different way, for example, by public apology for the caused insult.
4. Condition of release of person (the person accused, the defendant) from criminal liability in connection with conciliation with the victim (Art. 46 of UK is making it for the first time crimes of small weight.
Conciliation of the perpetrator with the victim (victims) should be understood as the act of his forgiveness by it (them) as a result of free declaration of will that it excludes any inappropriate influence irrespective of the fact which from the parties was initiator, and for what motives.
Release of the perpetrator from criminal liability and solution of the case in connection with conciliation with the victim is possible only in case of compensation of the caused loss or elimination of damage suffered.
5. Person can be exempted from criminal liability with transfer on bails (Art. 47 of UK) provided that it for the first time committed crime of small or average weight.
The basis of such release is the repentance of person is more sincere that demonstrates his desire to wash away guilt before staff of the company, organization or organization and to correct the behavior. Person who did not plead guilty to crime execution cannot be admitted to bail.
In the presence of the circumstances stated above, and also the petition which properly is drawn up the court has the right (but shall not) to exempt person from criminal liability with transfer it on bails of collective. The refusal of court in satisfaction of the petition shall be motivated.
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