How amnesty is spelled out in criminal law and to whom it is granted

According to Russian criminal law, for every criminal offense committed, the perpetrator must suffer a proportionate but fair punishment. The same legislation provides that in certain situations the imposed punishment can be mitigated, and in some cases, completely canceled. The mitigation of punishment is within the competence of the legislative authorities, and they have the right to decide on mitigation of punishment for a whole group of persons.

The right to amnesty is enshrined in the main legislative document - the Constitution of the Russian Federation.

Amnesty is often confused with pardon. These two concepts have something in common, but there are also significant differences. It can be said that an amnesty, like a pardon, implies the complete or partial annulment of the legal consequences of committed acts classified as crimes. Amnesty is carried out out of court.

In the strict sense of the word, amnesty means an act drawn up by the State Duma of the Russian Federation, as the highest legislative body of power, according to which a certain circle of people are exempted from criminal liability and receive the right to a reduced sentence or early expungement of a criminal record.

Many years of work experience allows me to act as an amnesty lawyer in St. Petersburg. I provide consultations and provide practical legal assistance on the application of amnesty.

Legal essence of amnesty

Paradoxically, the legal nature of the amnesty is not entirely clear. Some experts argue that the act is regulated by criminal law. According to others, amnesty is one of the institutions of state law. Still others take an intermediate position, arguing that the nature of the institution is dual, that is, it has civil and criminal law bases. In any case, the act of amnesty cannot be considered an act of criminal law, therefore, when drafting it, no changes are made to the Criminal Code of the Russian Federation.

The existence of an amnesty does not negate the criminality of the acts described in it. Moreover, these acts committed outside the amnesty period entail the same penalties. The mitigation of the sentence under the amnesty in no way indicates the bias of the sentence imposed by the court. A person prosecuted and granted amnesty is considered to have been justifiably accused, and therefore does not receive the right to rehabilitation. This document can be considered an act of mercy on the part of the state.

Article 84 of the Criminal Code of the Russian Federation contains some explanations of the features of such a document as an amnesty. In particular, it says that mitigation of punishment is applied not to individual persons (which is the difference from pardon), but to an entire category of persons who cannot be listed by name. But the amnesty act provides an extremely clear description of this category. This may include women, minors, and persons over a certain age.

In what cases can amnesty and pardon be applied?

The issuance of an amnesty act may be justified by the following purposes:

1. alleviation of the fate of persons whose crime is minor;
2. reconciliation of communities opposing the state;
3. resolving an interethnic conflict and/or its consequences;
4. reducing costs for the penal system;
5. eliminating the difficulty associated with overcrowding in colonies.

In Russia, the application can be criminal or political (for example, amnesty for those who participated in the rebellion).

Depending on what problem the amnesty solves, the subjects whose offenses are subject to forgiveness and oblivion are determined. It is important that this act does not have an individual direction, and entire groups of people who are united by some characteristic may fall under it.

For example, minor prisoners or single mothers, or those serving their sentences for moderately serious crimes may be amnestied.

A high probability of approval of a pardon application is possible in the following cases:

• the person who filed the petition was convicted for the first time;
• the prisoner's age is more than 50 years;
• the offense committed did not entail serious consequences;
• the convicted person received disability in prison;
• presence of young children.

Particular attention is paid to the severity of the crime, behavior in the colony, term, number of convictions, whether there was an amnesty, pardon or parole in the past, etc.

Legal consequences

If the amnesty is determined by the State Duma of the Russian Federation, then its applicability to a specific person is determined by the court or prosecutor. The adoption of this document has the following legal consequences for persons involved in the commission of a crime:

• Complete exemption from criminal liability.
• Release of previously convicted persons and those serving a sentence from further serving it.
• Reducing the term of punishment (imprisonment, forced or correctional labor).
• Changing the type of punishment to a lighter one.
• Elimination of additional punishment.
• Expungement of a criminal record.

Types of amnesty

There are the following types:

1. exemption from criminal liability or imputed punishment;
2. removal of liability for additional punishment;
3. mitigation of prescribed legal measures;
4. replacing punishment with a more merciful form;
5. expungement of a criminal record in cases where the offender has already served his sentence;
6. abolition of administrative liability of persons who committed violations in this area.

For information on existing types of criminal penalties, see here.

One act of amnesty may consist of several mitigating measures.

The following types of legal forgiveness are also used: political, tax, criminal, amnesty of migrants and capital.

Reason for declaring amnesty

In Russia, amnesties were announced rather traditionally. For example, some of them were dedicated to a specific holiday. In 1551, an amnesty was declared by the Stoglavy Cathedral due to the celebration of Easter. Similar expressions of the will of the authorities manifested themselves during significant events of the royal court or occurring in the royal family (accession to the throne, illness of a member of the royal family).

There are also known cases of amnesty for prisoners on the occasion of signing important documents. During the Soviet period and in modern Russia, amnesties became periodic. In the USSR, the act was drawn up in honor of the anniversary of the October Socialist Revolution. Currently, the starting point is the date of the Great Victory. The frequency of signing the act is 10 years, that is, the nearest amnesty for Victory Day is expected only in 2025.

In a number of cases, the signing of the amnesty act was purely political in nature. In 1994, an amnesty was declared for the participants of the State Emergency Committee, as well as for the participants in the events of August 1993. Political scientists believe that this was not a completely successful political move, since as a result the historical picture of everything that was happening was disrupted and now it is difficult to judge the degree of guilt of those involved. But mitigation of punishment by the will of the state legislative body may have more positive aspects than negative ones.

Another reason is the change in the foreign policy situation (amnesty of 1945). Finally, with the help of an amnesty, the problems of overcrowding in prison colonies can be solved.

Validity

The decision to grant amnesty is not made spontaneously. In addition to the reasons listed, there are also objective justifications for the state to take such a step. No one can guarantee that a person who has served his sentence in full has taken the path of reform. This indirectly confirms the fact that the convicted person realized his guilt ahead of schedule and needs to be given a chance to adapt to society.

Prison overcrowding is a key problem in the penal system. But at the same time, not a single country in the world openly declares this problem, as this would indicate an increase in crime. Modernization of old prisons entails significant material costs that are not included in the budget.

The high level of unemployment in the country negatively affects the ability to work and receive wages while in prison. This problem is especially evident during the economic crisis. It is the amnesty that allows a certain category of citizens to work honestly and create help for themselves in order to get firmly on their feet in the future.

Do not forget that the state spends money on the maintenance of prisoners. Back in the Soviet Union, prisoners were considered an economically beneficial resource, but today this status is no longer relevant.

Categories of citizens who are granted amnesty

The description of the category of citizens included in the amnesty is given directly in the act itself, so it is impossible to predict in advance that certain prisoners will receive leniency from the state. But many years of practice make it possible to determine which categories are most often mentioned in the document described above. This includes:

• disabled people;
• pregnant women;
• women with at least one child in their care;
• WWII veterans;
• prisoners serving time for minor crimes;
• prisoners suffering from tuberculosis;
• prisoners with cancer;
• persons of a certain age category;
• juvenile prisoners.

In some cases, the amnesty applies to those citizens who did not fall into any of the above categories, but were convicted for the first time. This should also include persons with state awards. Amnesty will never apply to those who have committed serious crimes. We are talking about murderers, rapists, pedophiles and terrorists.

The difference between amnesty and pardon

A more detailed content of such a concept as amnesty is disclosed in Article 84 of the Criminal Code of the Russian Federation. Pardon, as an act of supreme power, is considered in Article 85 of the Criminal Code of the Russian Federation. However, the above articles only touch on the main aspects directly related to the Criminal Code. Based on these aspects, one can only partially find the difference between amnesty and pardon.

The first difference lies in determining the circle of persons to whom the act will apply. Pardon is carried out directly by the President of the Russian Federation, and in relation to a specific person. Amnesty is applicable to an indefinite circle of persons, that is, to any category that may include a different number of people. For example, the amnesty dedicated to the 70th anniversary of the Great Victory exempted from punishment citizens who had state awards or participated in hostilities if these citizens had committed a crime of low severity for the first time. According to available data from the Federal Penitentiary Service of the Russian Federation, this amnesty affected 34 thousand people.

The second difference has already been indirectly mentioned; it concerns the subject making the decision. The pardon procedure is within the competence of the President of the Russian Federation. The convicted person has the right to submit a corresponding petition through a special commission created in each region of the country. Bodies of the executive system are directly involved in the consideration and acceptance of such a petition. The act of amnesty is drawn up by the State Duma. In the Russian Federation, special regional authorities have been created to deal with amnesty issues.

The documents also differ in their legal consequences. If the decision on pardon may determine the reduction of the term of imprisonment or the replacement of a prison term with a more lenient punishment, then the amnesty may imply, among other things, exemption from criminal liability before actual conviction, as well as exemption from additional punishment (payment of a fine, restriction of freedom).

Finally, the fourth difference is the difference in the mechanisms for implementing procedures. The amnesty is not announced at the request of officials, but is timed to coincide with some event significant for the state. Pardon occurs only after a petition has been drawn up by the convicted person. The pardon procedure is strictly regulated by regulatory documents, such as the Criminal Executive Code of the Russian Federation and the Presidential Decree “On pardon commissions in the territories of the constituent entities of the Russian Federation,” which approves the regulations on the procedure for considering applications for pardon in the Russian Federation.

There is another subtlety in the difference between pardon and amnesty. The fact is that the decision on amnesty, after entering into force, becomes a new regulatory document that spells out new legal norms. The decision to pardon does not entail changes in legislation.

Contents of specific acts of amnesty

The amnesty acts issued in recent years have much in common structurally, although they may differ in their content (by categories of amnesties, by the types of criminal law decisions regulated in them, etc.).

Of unconditional interest from the point of view of trends in the development of criminal policy in this area are the provisions of the State Duma of the Federal Assembly of the Russian Federation of April 24, 2015 No. 6578-6 GD “On declaring an amnesty in connection with the 70th anniversary of Victory in the Great Patriotic War of 1941–1945” .

This amnesty act adopted the following decisions that have criminal legal consequences:

1. on release from punishment;
2. on the termination of criminal cases;
3. on reducing the unserved part of the sentence;
4. on exemption from additional punishments;
5. on expungement of a criminal record;
6. on the non-application of amnesty to certain categories of criminals.

In addition, by the said resolution declaring an amnesty, the application of certain criminal law decisions was within the competence of the court and its discretion (clauses 7, 8, 9).

1. Several categories of persons sentenced to imprisonment for the first time for intentional crimes of minor and medium gravity were subject to release from punishment. Among them, individuals who took part in hostilities to defend the Fatherland, and persons equivalent to them, as well as persons who performed military or official duty in Afghanistan or other states where hostilities took place, stand out; military personnel, employees of internal affairs bodies of the Russian Federation, institutions and bodies, as well as other organizations who participated in the performance of tasks in conditions of armed conflict in the North Caucasus.

Further in the text of the Resolution, persons who were awarded awards of the USSR and (or) the Russian Federation are named, as well as persons who took part in the liquidation of the consequences of the disaster at the Chernobyl nuclear power plant and were exposed to radiation as a result of this disaster or the accident in 1957 at the Mayak production association.

According to the established legal tradition, in this fragment of the Resolution (clause 1) the following are also named among those subject to exemption from punishment: a) minors, women and single men with minor children or disabled children, b) pregnant women, c) men and older women 55 and 50 years old, respectively, d) disabled people of group I or II, as well as patients with an active form of tuberculosis, oncological diseases of clinical group III or IV.

Certain categories of those sentenced to imprisonment for a term of up to five years inclusive were also subject to exemption from punishment: for intentional crimes committed before the age of 18, who had not previously served imprisonment (clause 2), and those who committed crimes through negligence (clause 3).

According to paragraphs 4 and 5 of this Resolution, conditional sentences, convicts whose unserved part of the sentence was replaced by a milder type of punishment or the serving of the sentence was postponed, as well as those sentenced to a punishment not related to imprisonment were also subject to release from punishment.

2. The State Duma of the Russian Federation decided to terminate criminal cases in progress against a number of categories of criminals suspected and accused of committing a) intentional crimes of minor and medium gravity, b) crimes of negligence, for which a maximum penalty is provided not exceeding five years of imprisonment, c) crimes for which there is no penalty associated with imprisonment.

3. The Amnesty Decree dated April 24, 2015 No. 6578-6 GD also contains instructions to reduce the unserved part of the sentence by 1/3 in relation to persons sentenced to imprisonment for a term of more than five years for intentional crimes and previously specified in subparagraph . 1–9 paragraph 1 of this Resolution, as well as those sentenced to imprisonment for a term of over five years for crimes committed through negligence.

For those sentenced to imprisonment for a term of more than ten years for intentional crimes, the punishment is reduced by 1/4.

4. The following categories of criminal cases were included in the competence of the court to apply exemption from punishment: a) on intentional crimes, for which a punishment of more than five years of imprisonment is provided, committed by persons who were under the age of 18 at the time of the crime, who had not previously served imprisonment freedom, if the court finds it necessary to impose a sentence of up to five years in prison inclusive; b) about crimes committed through negligence, for which a punishment of more than five years of imprisonment is provided and committed by persons under the age of 18 years, if the court finds it necessary to impose a sentence of up to five years of imprisonment inclusive; c) about crimes, if the court finds it necessary to give persons a suspended sentence, impose a sentence not related to imprisonment, or apply a deferment of serving the sentence.

5. The expungement of a criminal record applies to a number of persons exempted from punishment in accordance with this act.

6. Clause 13 of the Amnesty Resolution contains a list of six categories of convicts to whom it does not apply.

Among them are persons convicted of committing certain types of serious crimes provided for by the Criminal Code of the RSFSR, as well as those convicted of committing certain types of crimes provided for by the Criminal Code of the Russian Federation (for example, Articles 105 and 111, 132–135, Parts 3 and 4 of Art. 158, 159, 160, 166, Article 162, 205, 205.¹, 206–211, Parts 4–6, Article 264, Articles 275–279, etc.).

The amnesty resolution also does not apply to convicts recognized in accordance with the Criminal Code of the RSFSR as especially dangerous recidivists or who committed crimes during a particularly dangerous recidivism (subclause 3, clause 13); on convicts who have again committed a deliberate crime in places of deprivation of liberty (subparagraph 5, paragraph 13), on convicts who are malicious violators of the established procedure for serving their sentences.

This Resolution came into force on the date of its official publication and was subject to execution within six months.

The State Duma of the Russian Federation also issued a separate resolution regulating the procedure for applying the Amnesty Resolution. It names the bodies entrusted with the application of the amnesty act. Among them are correctional institutions and pre-trial detention centers, bodies of inquiry and preliminary investigation bodies, courts, penal inspections, bailiffs, internal affairs bodies of the Russian Federation, the command of military units and the command of disciplinary military units.

They, within the established competence, must decide on the application of the amnesty act in relation to each person individually, by adopting a resolution on the application of the amnesty act. These decisions, in addition to judicial acts, were subject to approval by the prosecutor or the head of the investigative body, or a senior bailiff.

Public opinion

It is quite difficult to unambiguously assess public opinion about amnesty, since in modern Russia, as in the Soviet period, such procedures were viewed with some distrust. Many scientists and politicians actively oppose amnesty, since there is a high probability that a huge number of people with antisocial motivation will be released. This means that they will again begin to commit similar or even more serious crimes. In addition, the amnesty calls into question the fairness of the criminal law, according to which absolutely all categories of citizens are equal before the law.

Negative attitudes towards amnesty increased after dangerous criminals were released in 1953 and 1957, causing a sharp increase in the number of serious crimes in the country. Often they were committed by previously amnestied persons.

But one cannot fail to note the positive aspects of the amnesty. It implements the principle of humanism, which is an integral principle in the field of criminal law. Research shows that modern amnesties are considered more effective, and recidivism (the proportion of repeat offenders) among those who were released early does not exceed 5%.

Comparison

Thus, a pardon is a one-time act of humanism towards a certain person, caused by personal reasons (advanced age, mercy, serious illness, etc.). The amnesty applies to a wide range of criminals (for example, all minors serving sentences for theft) for a certain period of time. Pardon is an act of law enforcement practice, while amnesty is normative in nature.

Amnesty, like any other law, needs to be implemented by a specific government body. The pardon is subject to execution after it is promulgated by the official. It is impossible to grant amnesty to a certain group of people: this applies to criminals serving sentences for serious and especially serious crimes. But they can be pardoned if there is the appropriate will of the official.

What is the probability of getting an amnesty?

Article 84 of the Criminal Code of the Russian Federation determines that the main document defining the rules of amnesty is an act that specifies the circle of persons who are exempt from punishment. However, the procedure itself, that is, its implementation mechanism, is not spelled out anywhere. Each such act specifies a list of articles to which this document applies. But the fact that the convicted person belongs to the specified category does not guarantee his release.

The applicability of the amnesty to a specific person is determined by the competent authorities, including the prosecutor's office and the court. Sometimes the solution to this issue lies within the competence of the investigative authorities. For example, an amnesty is declared at the moment when an investigation is underway against a suspect (the category of amnestied and the article correspond to the content of the act), then the investigator issues an order to terminate the criminal prosecution.

Practice shows that not all persons are released under an amnesty, even if they are entitled to a reduced sentence. Everything depends on the decision of the administration of the correctional institution. If she considers that the prisoner must serve the full sentence, then the chances of release are sharply reduced.

It is quite possible that in this way pressure is put on the convicted person or there is banal extortion. A criminal lawyer will help you protest an unfounded refusal of an amnesty, and the right of a convicted person to receive legal assistance is enshrined in law. You can contact a lawyer to prepare a petition to dismiss the case in connection with the amnesty.

Amnesty, pardon and conviction: relationship

A criminal record is a consequence of a court conviction, which is taken into account in many life situations. For example, having a criminal record is an obstacle to filling a number of positions, and in some cases, to registering guardianship or adopting a child.

In addition, a criminal record in the event of a repeated crime may become the basis for recognizing the guilty as a repeat offender, and this will inevitably affect the severity of the punishment. In addition, recidivism is taken into account when determining the type of correctional institution - “experienced” criminals, as a rule, serve their sentences in strict and special regime colonies, while for the first time there is a chance to get away with a colony-settlement.

The law provides for 2 ways to terminate a criminal record and, as a result, cancel all legal consequences associated with it - expungement or withdrawal. The first occurs automatically after a certain time has passed after serving the sentence, the second is possible before this moment, that is, ahead of schedule, on the basis of a court decision, as well as as a result of acts of amnesty and pardon .

that amnesty, pardon, and conviction are combined in one chapter of the Criminal Code. Although there are fundamental differences between amnesty and pardon , both actions are aimed at achieving similar goals . Amnesty and pardon are acts of humanism towards persons who have violated the norms of the Criminal Code, and often consist of releasing the latter from the punishment imposed by the court, which, by virtue of Part 3 of Article 86 of the Criminal Code of the Russian Federation, cancels a criminal record.