1. A request to conclude a pre-trial agreement on cooperation is submitted by the suspect or accused in writing to the prosecutor. This petition is also signed by the defense attorney. If the defense attorney is not invited by the suspect or accused himself, his legal representative, or on behalf of the suspect or accused by other persons, then the participation of the defense attorney is ensured by the investigator.
2. A suspect or accused has the right to file a petition to conclude a pre-trial cooperation agreement from the moment the criminal prosecution begins until the announcement of the end of the preliminary investigation. In this petition, the suspect or accused indicates what actions he undertakes to perform in order to assist the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, and searching for property obtained as a result of the crime.
3. A request to conclude a pre-trial agreement on cooperation is submitted to the prosecutor by the suspect or accused, his defense attorney through the investigator. The investigator, having received the said petition, within three days from the moment of its receipt, either forwards it to the prosecutor along with a reasoned resolution agreed upon with the head of the investigative body to initiate a petition to the prosecutor to conclude a pre-trial cooperation agreement with the suspect or accused, or issues a resolution to refuse satisfaction petitions for concluding a pre-trial cooperation agreement.
4. The investigator’s decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation can be appealed by the suspect or accused, his defense attorney to the head of the investigative body.
What has changed since August 1, 2021? When the provisions of Art. 317.1 of the Civil Code of the Russian Federation?
Firstly, earlier the provisions of Art. 317.1. The Civil Code of the Russian Federation was applied automatically if the parties to the contract did not provide for a condition on its non-application. From August 1, 2021, the provisions of Art. 317.1. The Civil Code of the Russian Federation will be applied only in cases where the parties have directly established in the contract a condition for its application or an indication of the application of such interest is established by law.
Secondly, until August 1, 2021, the provisions of the article were to be applied only to business relations. Now, individuals also have the right to include in the agreement concluded between them a condition on the application of Art. 317.1 of the Civil Code of the Russian Federation to your relations.
However, what remains unchanged is that interest is subject to accrual for the period of granting the debtor an installment plan/deferred payment, that is, when the creditor himself has fulfilled his obligations (to supply goods, perform work, provide services, etc.). This article does not apply to cases of advance payment for goods, works, services.
Is interest always calculated and paid under Art. 317.1 of the Civil Code of the Russian Federation?
From August 1, 2021, interest is subject to accrual and payment to the creditor if the law or agreement provides for their accrual. Unless the parties have specified in the agreement and the law does not directly provide otherwise, the amount of interest is determined by the key rate of the Bank of Russia in force during the relevant periods. Previously, interest was calculated based on the refinancing rate, but this change was more formal than significant.
Participants in civil transactions, as before, have the right to change the rate from which the amount of interest will be determined.
We are often asked whether it is necessary to pay interest to the creditor if he has not made a corresponding claim. As of August 1, 2021, there are two answers to this question:
- yes, it is necessary if the contract was concluded during the period from June 1, 2015 to July 31, 2021 and the parties did not include in the contract a condition on the non-application of the provisions of Art. 317.1 of the Civil Code of the Russian Federation to their legal relations;
- no, it is not necessary if the agreement was concluded before June 1, 2015, as well as during the period from August 1, 2021 and the parties did not provide for the accrual of such interest in the agreement, and the law does not contain a direct indication of their accrual.
Interest under art. 317.1 of the Civil Code of the Russian Federation are not a sanction for failure to fulfill obligations. This is the usual “fee” for using the lender’s funds. Civil legislation is based on the principle of good faith of the participants: it is assumed that the debtor under an agreement concluded during the period from June 1, 2015 to July 31, 2016 should not wait for an additional claim to be sent to him from the creditor, but must independently repay the debt in excess of the amount of the main one pay the debt and interest.
In order to exclude the application of the article to the relations of the parties under an agreement concluded after June 1, 2015, it was necessary in the text of the agreement itself or in the additional agreement to it (if the agreement has already been concluded), to provide the following wording: “For the legal relations of the parties under this agreement, the provisions Art. 317.1. The Civil Code of the Russian Federation does not apply." If there is no such wording in the contract, Art. 317.1. The Civil Code of the Russian Federation is applied by default.
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How to compare Art. 317.1 of the Civil Code of the Russian Federation and Art. 395 of the Civil Code of the Russian Federation and is it possible to use them simultaneously?
The question of the relationship between Art. 317.1. and Art. 395 of the Civil Code of the Russian Federation is also not unambiguously resolved at the moment. The courts also disagree on this issue, and their positions are consolidated only at the level of the first instance. Thus, the Arbitration Court of St. Petersburg and the Leningrad Region, in its decision dated July 8, 2015 in case No. A56-30587/2015, which entered into legal force, indicated that the grounds for calculating these interests are different and their simultaneous calculation is possible. This position seems to be the most justified.
Art. 317.1 of the Civil Code of the Russian Federation, as noted above, is not a sanction for failure to fulfill obligations (unlike Article 395 of the Civil Code of the Russian Federation). Considering the situation from this point of view, we come to the following conclusion: if the debtor fulfills the obligation to pay the principal debt, but does not pay the interest accrued on it under Art. 317.1. Civil Code of the Russian Federation, then for this interest the creditor has the right to make a claim for the accrual and payment of interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation from the moment of delay in payment of interest under Art. 317.1. Civil Code of the Russian Federation and until their actual payment.
The Arbitration Court of the Rostov Region in its decision dated 07/03/2015 in case No. A53-3935/15 (entered into legal force) and dated 07/06/2015 in case No. A53-32356/14 (the appellate instance left the decision unchanged) expressed a different position: “The court believes that the provision of Art. 317.1 of the Civil Code of the Russian Federation (due to the subject composition of persons, the emergence of a dispute from entrepreneurial activity) are a special norm in relation to Art. 395 of the Civil Code of the Russian Federation. In connection with the above, in cases where the debtor - a commercial organization does not pay the amount of money after the due date, interest is payable on the amount of the debt: to the relations of the parties that existed before May 31, 2015, the provisions of Art. 395 of the Civil Code of the Russian Federation, and for relations existing after June 1, 2015, the provisions of Art. 317.1 of the Civil Code of the Russian Federation.”
The Arbitration Court of the Kemerovo Region adheres to a similar position: decisions dated June 26, 2015 in case No. A27-7790/2015 (entered into legal force), dated June 29, 2015 in case No. A27-8074/2015 (entered into legal force ) and dated 07/06/2015 in case No. A27-8589/2015 (the appeal was returned).
Interest under art. 395 of the Civil Code of the Russian Federation are subject to accrual from the moment when the debtor has a delay in fulfilling payment obligations. The calculation of interest under Art. 317.1 of the Civil Code of the Russian Federation must be carried out from the moment the debtor receives fulfillment of obligations from the creditor (goods, results of work, etc.) until the moment payment is made for them. At the same time, interest under Art. 317.1 of the Civil Code of the Russian Federation will be accrued during the period when there was a delay in payment, since untimely fulfillment of obligations did not entail the termination of the use of interest on the monetary obligation. That is why, in this case, the interest accrued in accordance with Art. 317.1. Civil Code of the Russian Federation, interest is subject to accrual for the use of other people's funds under Art. 395 of the Civil Code of the Russian Federation. Double liability does not arise, since the grounds for calculating these interests are different.
To better understand how the calculation is made in this case, let's look at an example. Let’s assume that an agreement has been concluded for the supply of goods worth 10,000 rubles with the condition of payment within 10 calendar days from the date of delivery. On the 10th, the buyer accepts the goods, and from the 11th to the 20th, interest is subject to accrual under Art. 317.1 of the Civil Code of the Russian Federation. The buyer did not fulfill the obligation to pay on time and made payment only on the 25th. He actually used the funds from the 11th to the 25th, and from the 21st to the 25th there was a delay for which the creditor has the right to demand payment of interest under Art. 395 of the Civil Code of the Russian Federation (if the contractual amount of the penalty for late payment is not established). As a result, the buyer owes the lender 10,000 rubles plus interest under Art. 317.1 of the Civil Code of the Russian Federation for this amount for the period from the 11th to the 20th, as well as interest for the use of other people's funds under Art. 395 of the Civil Code of the Russian Federation, the calculation of which is based on the amount of the principal debt - 10,000 rubles and interest accrued on it under Art. 317.1 of the Civil Code of the Russian Federation for the period from the 21st to the 25th. Thus, for the period from the 21st to the 25th, the buyer also pays interest under Art. 317.1 of the Civil Code of the Russian Federation, and interest accrued on them for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation.
Summarizing the above, we note that the positions of the courts are not only different, but also contradictory in some formulations. There is currently no uniform practice on the application of Articles 317.1 and 395 of the Civil Code of the Russian Federation, and the existing decisions were made only by courts of first instance. It is necessary to wait for the formation of judicial practice at least at the level of arbitration courts of appeal and after that, depending on the goals pursued, to conclude or not to conclude additional agreements to contracts concluded before June 1, 2015, on the possibility of non-application of Art. 317.1 of the Civil Code of the Russian Federation.
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Commentary on Article 317.1 of the Code of Criminal Procedure of the Russian Federation
1. A pre-trial agreement on cooperation is an agreement between the parties to the prosecution and defense, in which these parties agree on the terms of liability of the suspect or accused depending on his actions after the initiation of a criminal case or the filing of charges (clause 61 of Article 5 of the Code of Criminal Procedure). The essence of such an agreement is that the suspect or accused undertakes to assist the investigation in solving and investigating the crime, exposing and prosecuting other accomplices in the crime, searching for property obtained as a result of the crime, in exchange for a reduction in punishment in accordance with Part. Parts 2 and 4 Art. 62 of the Criminal Code of the Russian Federation.
The basis for concluding a pre-trial agreement is the relevant request of the suspect or accused addressed to the prosecutor, and the conditions are: a) the presence of suspicion or accusation in the case in which the preliminary investigation is being carried out; b) the voluntariness of filing a petition after consultation with a defense lawyer; c) the need of the criminal prosecution authorities to obtain assistance from the suspect or accused.
2. It is necessary to note the contradiction between the content of the norms of Chapter 40.1 and the concept of a pre-trial agreement on cooperation given in the main provisions of the Code (clause 61 of Article 5), according to which this is an agreement between the parties to the prosecution and defense, in which these parties agree on the terms of liability of the suspect or the accused, depending on his actions after the initiation of a criminal case or the filing of charges. Meanwhile, the law includes not only the prosecutor, investigator, head of the investigative body, etc., as the prosecution, but also the victim, his legal representative and representative, the civil plaintiff and his representative (clause 47 of article 5). The defense is not only the accused and his defense lawyer, but also the civil defendant, his legal representative and representative, etc. (Clause 46 Article 5). However, Part 3 of Art. 317.3 itself does not require that the pre-trial agreement on cooperation be signed by not all participants in the process on the part of the prosecution and defense, but mentions its signing only by the prosecutor, the suspect or accused and his defense attorney. What is this, a gap in the regulation of Ch. 40.1 Code of Criminal Procedure or the actual position of law?
Let's see to what extent the principles of equality of the parties (Part 4 of Article 15), including the victim, as well as fairness are guaranteed by the procedure provided for in this chapter. The legitimate substantive interest of the victim usually consists of imposing a fair punishment on the perpetrator and full compensation for the harm caused by the crime. In turn, the fairness of the imposed punishment depends on its compliance with the nature and degree of social danger of the crime, the circumstances of the case and the identity of the perpetrator (Part 1 of Article 6 of the Criminal Code). Confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime - i.e. everything that constitutes the subject of cooperation of the accused with the state bodies of preliminary investigation is considered as mitigating circumstances (clause “and” part 1 of article 61, part 2 of article 62 of the Criminal Code). One could assume that these actions indicate real (moral) repentance of the accused and, as a result, lead to a real reduction in the degree of his social danger, up to its complete loss. However, attention is drawn to the fact that the law does not at all require the accused, with whom a cooperation agreement is concluded, to necessarily admit guilt, repentance, etc., but is satisfied only by his willingness to cooperate. Therefore, another, more realistic explanation, apparently, is that the state, in exchange for assistance provided, simply forgives the perpetrator (shows leniency towards him) - partially or completely - which serves as the basis for either a significant reduction in the punishment (from half to two-thirds of the maximum sanction for the corresponding article of the Criminal Code), or for passing a sentence with the release of the convicted person from serving the sentence (Part 5 of Article 317.7 of the Criminal Procedure Code, Article 80.1 of the Criminal Procedure Code).
However, one cannot fail to take into account that among the goals (purposes) of criminal proceedings, the law names, first of all, the protection of the rights and legitimate interests of individuals and organizations that have suffered from crimes (Part 1 of Article 6 of the Code of Criminal Procedure). This provision is by no means accidental - it follows from the priority of human rights over the interests of the state, proclaimed by the Constitution of the Russian Federation. In the Russian Federation, as a rule-of-law state, a person, his rights and freedoms are the highest value, and the recognition, observance and protection of the rights and freedoms of man and citizen is the responsibility of the state; the rights and freedoms of man and citizen in the Russian Federation are recognized and guaranteed in accordance with generally accepted principles and norms of international law and in accordance with the Constitution of the Russian Federation, they determine the meaning, content and application of laws and are ensured by justice (Articles 1, 2, 17 and 18). According to Art. 52 of the Constitution of the Russian Federation, the rights of victims of crimes and abuse of power are protected by law; The state provides victims with access to justice and compensation for damage caused. This right is one of the inalienable constitutional rights of man and citizen, and in the Russian Federation laws should not be issued that abolish or diminish the rights and freedoms of man and citizen (Articles 17, 55 of the Constitution of the Russian Federation), including, obviously, the rights victims. At the same time, the concept of access to justice is not formal, which means for the victim not just the right to be present during judicial procedures, but the opportunity to declare and defend his position and protect his own rights and interests on the basis of complete equality and with the greatest efficiency both in court and in during the pre-trial preparation of the case. Consequently, the measure of the social danger of a crime that “falls on the victim” cannot be extinguished only through the forgiveness of the perpetrator (full or partial) by the state, without the participation of the victim in a transaction on cooperation, who would have a real opportunity to put forward his own conditions for reconciliation or at least to reduce the punishment for the perpetrator. In other words, taking into account the above-mentioned legal provisions, the state is not authorized to forgive the perpetrator not only “for itself”, but also “for the victim”, without involving the latter in discussing the terms of the cooperation agreement and concluding it behind his back. Otherwise, it would mean a significant restriction of the victim’s right of access to justice.
The Constitutional Court of the Russian Federation indicated that from the provisions of the Constitution of the Russian Federation and the corresponding provisions of the Universal Declaration of Human Rights (Articles 7, 8 and 10), as well as the International Covenant on Civil and Political Rights (Article 14) and the Convention for the Protection of Rights human and fundamental freedoms (Article 6, as well as Article 3 and paragraph 2 of Article 4 of Protocol No. 7 to the Convention as amended by Protocol No. 11), which, by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation are an integral part of the legal system of Russia, it follows that justice in its essence can be recognized as such only on the condition that it meets the requirements of justice and guarantees effective restoration of rights. The criminal procedural law must guarantee the effective protection of constitutional values, primarily the rights and freedoms of man and citizen, based on the principles of fairness, proportionality and legal security <1>. Implementation of general legal principles of justice and legal equality in the implementation of judicial protection in criminal proceedings, as follows from Part 1 of Art. 17, part 1 and 2 art. 19, art. Art. 46, 49, 50, 52 and part 3 of Art. 123 of the Constitution of the Russian Federation, involves providing the parties - both the prosecution and the defense - with equal procedural opportunities to defend their rights and legitimate interests. In the trial, the prosecution side, in accordance with paragraph 47 of Art. 5 of the Code of Criminal Procedure, in addition to the prosecutor, is represented, in particular, by the victim, who has his own interests in criminal proceedings. A necessary guarantee of judicial protection and fair trial of the case is the real opportunity provided to the parties to bring to the attention of the court their position regarding all aspects of the case, since only under this condition the right to judicial protection is exercised at the court hearing, which, within the meaning of Parts 1 and 2 Art. 46 of the Constitution of the Russian Federation and Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms must be fair, complete and effective. This legal position fully relates to ensuring the right to judicial protection of victims of crimes. This approach also meets the provisions of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (approved by UN General Assembly Resolution No. 40/34 of November 29, 1985), which provides that victims of crime should be provided with the opportunity to “express and consider their opinions and wishes at the appropriate stages of the judicial process.” proceedings where their personal interests are affected, without prejudice to the accused and in accordance with the relevant national criminal justice system”, and to be provided with “appropriate assistance throughout the proceedings” (paragraph 6 b, c). These requirements are also in line with Recommendation NR(85)11 of the Committee of Ministers of the Council of Europe “On the position of the victim in criminal law and procedure”, which emphasizes the need to take greater account of the requests of the victim at all stages of the criminal process in accordance with the principle of giving him the right to ask for review by the competent authority of the decision not to prosecute or the right to initiate private proceedings (preamble, paragraph 7 of section IA) <2>.
——————————— <1> See: Resolution of the Constitutional Court of the Russian Federation of May 11, 2005 N 5-P in the case of verifying the constitutionality of Article 405 of the Code of Criminal Procedure of the Russian Federation in connection with the request of the Kurgan Regional Court, complaints of the Commissioner for Human Rights in the Russian Federation, etc. // Rossiyskaya Gazeta. 05/20/2005. N 106. <2> See: Ibid.
At the same time, the Constitutional Court of the Russian Federation in Resolution No. 7-P of April 24, 2003 indicated that the state’s obligation to ensure the restoration of the rights of a crime victim does not imply giving the victim the right to predetermine the need for criminal prosecution against a particular person, as well as the limits of the responsibility assigned to this. person of criminal responsibility. Due to the public nature of criminal legal relations, such a right can belong only to the state represented by its legislative and law enforcement bodies. From this legal position it follows that the state has the right to establish grounds for assigning a more lenient punishment to a person guilty of committing a crime, in cases of his voluntary cooperation with public criminal prosecution authorities after the initiation of a criminal case or filing of charges, in order to assist the investigation in solving and investigating the crime, incriminating and prosecuting other accomplices in the crime, searching for property obtained as a result of the crime.
From the above legal positions of the Constitutional Court of the Russian Federation it follows that the participation of the victim or civil plaintiff in the procedure for concluding a pre-trial agreement on cooperation is not mandatory and the very possibility of using this agreement in a criminal case and imposing a more lenient criminal punishment does not depend on their expression of will. However, the victim cannot be deprived of his constitutional right to judicial protection and restoration of violated rights and interests - neither the volume nor the degree of guarantee of these rights to the victim can depend on whether the state has exercised its power to carry out criminal prosecution in full or it mitigated criminal liability, providing for the imposition of a more lenient punishment upon the conclusion of a pre-trial cooperation agreement. (Determination of the Constitutional Court of the Russian Federation dated November 2, 2011 N 1481-О-О on the complaint of citizens V.S. Kovalchuk and T.N. Kovalchuk for violation of their constitutional rights by part two of Article 317.6 of the Code of Criminal Procedure of the Russian Federation.) On the right of the victim to object to consideration in a special procedure of a criminal case in which a pre-trial cooperation agreement was concluded, see com. to Art. 317.7.
3. An analysis of the norms of the Code of Criminal Procedure and the Criminal Code shows that the application of the institution of a cooperation agreement under the legal regulation provided by the Federal Law of June 29, 2009 N 141-FZ, may encounter serious legal difficulties, if at all possible without amending the Law. The fact is that in accordance with Part 5 of Art. 317.7 of the Code of Criminal Procedure, the judge makes a guilty verdict and taking into account the provisions of part 2 and 4 of Art. 62 of the Criminal Code. Moreover, in Part 2 of Art. 62 of the Criminal Code provides that in the event of concluding a pre-trial agreement on cooperation in the presence of mitigating circumstances provided for in paragraph “i” of Part 1 of Art. 61 of the Criminal Code, the term or amount of punishment cannot exceed half the maximum term or amount of the most severe type of punishment, only in the absence of aggravating circumstances. However, according to Art. 63 of the Criminal Code, aggravating circumstances include, for example, such as: the occurrence of grave consequences as a result of the commission of a crime (clause “b”); committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (clause “c”); particularly active role in the commission of a crime (clause “d”); committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group (clause “e”); committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission (clause “e.1”); committing a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty (clause “g”); committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, toxic and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion (clause “k” ) etc. Taking into account the conceptual focus of the institution of cooperation agreement on countering organized forms of crime, on uncovering and investigating contract killings, banditry, drug crimes, corruption <1>, the named aggravating circumstances are typical and are found in almost all cases in which apply this innovation. Thus, the presence in Part 2 of Art. 62 of the Criminal Code of such a condition for concluding an agreement and imposing a reduced sentence as the absence of aggravating circumstances, practically blocks the application of the norms of Chapter. 40.1 of the Criminal Procedure Code as it relates to the largest number of crimes, namely those for which the criminal law does not provide for life imprisonment or the death penalty.
——————————— <1> See: Explanatory note of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation to the draft Federal Law “On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation "(on the introduction of a special procedure for making a court decision when concluding a pre-trial cooperation agreement).
At the same time, there is a paradox, which consists in the fact that if a crime is punishable by life imprisonment or the death penalty, then in order to conclude an agreement on cooperation and, accordingly, the non-application of these types of punishment, the current law no longer establishes such a condition as the absence of aggravating circumstances (h 4 Article 62 of the Criminal Code). Moreover, for persons who have committed these especially serious crimes, the possibility of complete release from serving their sentence is not formally excluded (Part 5 of Article 317.7 of the Criminal Procedure Code, Article 80.1 of the Criminal Code). Such a situation is not consistent with the requirements of fairness, legal proportionality and certainty.
In our opinion, in Part 4 of Art. 62 of the Criminal Code should be urgently amended by analogy with Part 4 of Art. 65 of the Criminal Code, indicating that in cases where a sentence is passed taking into account the cooperation agreement executed by the accused, aggravating circumstances are not taken into account by the court, or at least may not be taken into account.
4. Within the meaning of the norms of Ch. 40.1 the conclusion of a pre-trial cooperation agreement is allowed only during the preliminary investigation and is impossible when conducting an investigation in the form of an inquiry.
5. The grounds for the investigator’s refusal to satisfy the request are not specified in the law. Moreover, such a refusal, unlike a decision to grant a petition, does not require its prior approval by the investigator and the head of the investigation. However, it seems that the discretion of the investigative authorities in the event of refusal to satisfy this request cannot be determined solely by their ideas about the advisability or inexpediency of concluding such an agreement. Due to the public nature of the legal regulation of a cooperation agreement, a promise on the part of a suspect or accused to assist the investigation in solving and investigating a crime, exposing other accomplices in a crime, or searching for property obtained as a result of a crime, can be rejected, in our opinion, only on the basis of its obvious falsity or unreliability, or due to obvious belatedness, when the crime has already been fully disclosed, all accomplices have been identified, completely exposed, etc. In other words, the conclusion of a cooperation agreement, in the absence of information about the presence of the above obstacles, should, in our opinion, be considered as the right of the accused (suspect) and, accordingly, the obligation of the investigator and prosecutor, whose discretion is thus not free, but discretionary nature.
6. When applying the institution of a pre-trial cooperation agreement, the question may arise about its relationship with the institution of termination of criminal prosecution due to the active repentance of the suspect or accused (which may be limited only to one’s own crime and does not necessarily imply assistance in solving other crimes). So, in part 2 of Art. 28 of the Code of Criminal Procedure establishes that the termination of criminal prosecution of a person in criminal cases of grave or especially grave crimes in the presence of active repentance of the person is carried out in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code. However, the termination of criminal prosecution against suspects or accused in accordance with the conditions named in the notes to these articles is the absolute responsibility of the preliminary investigation authorities and the court, and this may occur regardless of the actual (moral) repentance of the person or his assistance in solving and investigating the crime, exposing other accomplices, search for stolen property, etc. So, for example, a person who voluntarily or at the request of the authorities released a hostage is exempt from criminal liability if his actions do not contain another crime (note to Article 206 of the Criminal Code). At the same time, when taking actions in fulfillment of a cooperation agreement (which, as a rule, indicate actual repentance to a greater extent), the accused can usually only count on a reduction in punishment. It appears that the presence of the grounds implied in Art. 28 of the Code of Criminal Procedure and those named in the notes to the relevant articles of the Criminal Code, a cooperation agreement should not be concluded, but a decision should be made to terminate criminal prosecution.
7. According to part 4 com. article, the investigator’s decision to refuse to satisfy a request to conclude a pre-trial agreement on cooperation can be appealed by the suspect or accused, his defense attorney to the head of the investigative body. This, however, cannot cancel the right of the suspect or accused and his defense attorney to appeal the investigator’s decision to the court in accordance with Art. 125 of the Code of Criminal Procedure, according to which all decisions and actions (inaction) of the investigator, the head of the investigative body and the prosecutor, which can cause damage to the constitutional rights and freedoms of participants in criminal proceedings or impede citizens’ access to justice, can be appealed to the district court at the place where the preliminary investigation was conducted. The constitutional rights that may be considered the object of violation here are the right of everyone to freely seek, receive, transmit, produce and disseminate information in any legal way, including in such a way as the implementation of a concluded cooperation agreement; the right to state protection of rights and freedoms and the right of everyone to protect their rights and freedoms by all means not prohibited by law (Part 4 of Article 29, Article 45 of the Constitution of the Russian Federation). The Constitutional Court of the Russian Federation, in Resolution No. 5-P of March 23, 1999, recognized the need to provide interested persons, even during the preliminary investigation of a criminal case, with the opportunity to appeal to the court with a complaint against the actions and decisions of the inquirer, investigator or prosecutor, if they not only affect the actual criminal case. procedural relations, but also give rise to consequences that go beyond their scope, significantly limiting the constitutional rights and freedoms of the individual. The Constitutional Court proceeded from the fact that postponing the verification of the legality and validity of such actions and decisions until the completion of the preliminary investigation in the criminal case and until it is sent to the court with an indictment - so that such verification is carried out during the trial of the case, - may cause damage to the rights and freedoms of citizens, the compensation of which in the future will be impossible <1>. Considering that the cooperation agreement is pre-trial and can be concluded only before the announcement of the end of the preliminary investigation (Part 2 of the article), compensation for the harm to the interests of the accused caused by the unlawful refusal to conclude such an agreement when the case is already in court would be impossible.
——————————— <1> See: Collection of legislation of the Russian Federation. 04/05/1999. N 14. Art. 1749.
What about taxation?
This question remains open for contracts concluded before July 31, 2021. The debtor’s obligation, without additional requirements from the creditor, to calculate and pay interest under Art. 317.1 of the Civil Code of the Russian Federation raises the question of taxation of these amounts. At the moment, no explanations have been provided on this issue, which significantly complicates the life of entrepreneurs.
It is assumed that in order to recognize expenses, a debtor using the accrual method must be guided by clause 1 of Art. 272 of the Tax Code of the Russian Federation. In accordance with this provision, expenses accepted for tax purposes are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) other form of payment, and are determined taking into account the provisions of articles 318-320 Tax Code of the Russian Federation. In this case, expenses are recognized in the reporting (tax) period in which these expenses arise based on the terms of the transactions.
The creditor should be guided by clause 1 of Art. 271 of the Tax Code of the Russian Federation, according to which income is recognized in the reporting (tax) period in which it occurred, regardless of the actual receipt of funds, other property (work, services) and (or) property rights (accrual method).
At the moment, it is not clear how the tax office will identify unaccounted amounts of interest accrued in accordance with Art. 317.1 of the Civil Code of the Russian Federation, because the debtor’s obligation to pay interest follows only from the terms of the agreement. Practice will answer these questions.
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Article 317 part 2 - fatal accident. How is the amnesty applied? Distributed by …
Article 317 of the Criminal Code of the Republic of Belarus. Violation of traffic rules or operation of vehicles
1. Violation of the rules of the road or the operation of vehicles by a person driving a vehicle, which entailed through negligence the infliction of less serious bodily injury, -
shall be punishable by a fine, or deprivation of the right to hold certain positions or engage in certain activities, or correctional labor for a term of up to two years, or arrest for a term of up to six months, or restriction of freedom for a term of up to two years, or imprisonment for the same term.
2. The same act, which by negligence entailed the death of a person or the infliction of serious bodily injury, -
shall be punishable by correctional labor for a term of up to two years, or restriction of liberty for a term of up to five years, or imprisonment for the same term with deprivation of the right to hold certain positions or engage in certain activities or without deprivation.
LAW OF THE REPUBLIC OF BELARUS
July 9, 2012 No. 387-Z
On amnesty for certain categories of persons who have committed crimes
Passed by the House of Representatives on June 27, 2012
Approved by the Council of the Republic on June 29, 2012
Article 1. Exempt from punishment in the form of community service, a fine, deprivation of the right to hold certain positions or engage in certain activities, correctional labor, restrictions on military service, arrest, restriction of freedom, imprisonment, as well as from other measures of criminal liability in the form of suspended conviction execution of punishment, conviction with conditional non-application of punishment, conviction without imposition of punishment, additional punishments:
minors;
pregnant women;
women and single men with children under the age of eighteen;
men over sixty years of age and women over fifty-five years of age;
disabled people of group I or II, as well as persons with active forms of tuberculosis assigned to groups I, II, V "A" or V "B" of dispensary registration, and persons with cancer of the second, third or fourth clinical groups, HIV- infected with the 3rd (pre-AIDS) and 4th (AIDS) stages of the disease according to the clinical classification of the World Health Organization;
veterans of combat operations on the territory of other states;
participants in the liquidation of the consequences of the disaster at the Chernobyl nuclear power plant, other radiation accidents and persons affected by these accidents;
persons who received wounds (contusions), mutilations, illnesses while performing duties during military service in the Armed Forces of the USSR, the State Security Committee of the USSR, the Armed Forces of the Republic of Belarus, other troops and military formations created in accordance with the legislation of the Republic of Belarus, as well as persons who received injuries (contusions), mutilations, illnesses in connection with the performance of official activities during the period of service in the Investigative Committee of the Republic of Belarus, internal affairs bodies, financial investigations of the State Control Committee of the Republic of Belarus, the prosecutor's office, authorities and units for emergency situations.
Expunge the criminal record of persons released from punishment on the basis of the first part of this article.
Article 2. Exempt from criminal liability and terminate preliminary investigations in criminal cases being processed by criminal investigative bodies, and proceedings in criminal cases not considered by the courts for crimes committed before the entry into force of this Law by persons listed in part one of Article 1 of this Law.
The provisions of part one of this article do not apply to persons suspected or accused of committing crimes listed in Article 7 of this Law.
Article 3. Release from punishment persons not listed in part one of Article 1 of this Law who have committed crimes that do not pose a great public danger (Part 2 of Article 12 of the Criminal Code of the Republic of Belarus of July 9, 1999 (hereinafter referred to as the Criminal Code of the Republic of Belarus)), who have been sentenced in the form of restriction of freedom, imprisonment and the sentences in respect of which were decided on the day this Law came into force.
Article 4. Release from punishment persons not listed in part one of Article 1 of this Law, convicted of crimes classified as less serious (part 3 of Article 12 of the Criminal Code of the Republic of Belarus), who are sentenced to restriction of freedom, imprisonment, if on the day this Law comes into force, they have served at least one quarter of the imposed sentence.
Article 5. Release from punishment in the form of arrest persons not listed in part one of Article 1 of this Law, whose sentences were passed on the day this Law came into force.
Article 6. Release from punishment, with the exception of additional punishment, persons who have been sentenced for crimes provided for in parts 2 - 4 of Article 210, parts 3 and 4 of Article 211, parts 3 and 4 of Article 212, Article 221, part 2 of Article 222, parts 2 and 3 of article 223, parts 2 – 4 of article 2262 (except for persons who have committed crimes with the use of violence), parts 2 – 4 of article 228 (except for persons who have committed crimes with the use of violence), part 3 of article 229, article 230 , part 3 of article 233, part 2 of article 234, parts 2 and 3 of article 235, part 2 of article 243, part 2 of article 245 (except for persons who have committed crimes with the use of violence), part 3 of article 246 (except for persons who have committed crimes with the use of violence), part 3 of article 424 (except for persons who committed crimes out of selfish interest) of the Criminal Code of the Republic of Belarus, as well as persons who were sentenced for crimes provided for in parts two - four of article 91, part two of article 151, part two Article 1514 (except for persons who have committed crimes with the use of violence), part three of Article 1516 (except for persons who have committed crimes with the use of violence), part two of Article 1526, part two of Article 160, part two of Article 1601, part two of Article 166 ( with the exception of persons who committed crimes out of selfish interest) of the Criminal Code of the Republic of Belarus of December 29, 1960 (hereinafter referred to as the Criminal Code of the Republic of Belarus of 1960), if on the day this Law came into force they had served at least one quarter of the imposed sentence.
Article 7. Not exempt from punishment and other measures of criminal liability:
persons listed in part one of Article 1, Articles 3 – 6 of this Law, convicted under the Criminal Code of the Republic of Belarus for:
crimes against the peace and security of mankind (Articles 122, 125 – 129, parts 2 and 3 of Article 130, Article 131);
war crimes and other violations of the laws and customs of war (Articles 132 – 137);
crimes against life and health (part 1 of article 139, article 147, parts 2 and 3 of article 157, part 2 of article 164);
crimes against sexual integrity or sexual freedom (parts 1 and 2 of Article 166, parts 1 and 2 of Article 167, part 2 of Article 171, part 3 of Article 1711);
crimes against the structure of family relations and the interests of minors (parts 2 and 3 of Article 172);
crimes against personal freedom, honor and dignity (Article 181, parts 2 and 3 of Article 1811, Article 182, part 2 of Article 183, part 3 of Article 187);
crimes against property (parts 3 and 4 of article 205, parts 3 and 4 of article 206, articles 207, 208, parts 3 and 4 of article 209, parts 2 - 4 of article 210, parts 3 and 4 of article 211, parts 3 and 4 of article 212 , parts 2 and 3 of Article 214, parts 2 and 3 of Article 218), unless otherwise provided by Article 6 of this Law;
crimes against the procedure for carrying out economic activities (Article 221, part 2 of Article 222, parts 2 and 3 of Article 223, parts 2 - 4 of Article 2262, parts 2 - 4 of Article 228, part 3 of Article 229, Article 230, part 3 of Article 233, part 2 of Article 234, parts 2 and 3 of Article 235, part 2 of Article 243, part 2 of Article 245, part 3 of Article 246), unless otherwise provided by Article 6 of this Law;
crimes against environmental safety and the natural environment (part 1 of article 265, part 1 of article 266, part 2 of article 267, part 2 of article 268, part 3 of article 272, part 3 of article 274, part 3 of article 278, part 2 of article 279);
crimes against public safety (Article 287, Part 2 of Article 288, Part 2 of Article 290, Article 291, Part 2 of Article 292, Articles 294, 295, Part 2 of Article 299, Part 3 of Article 301, Part 2 of Article 302, Part 2 of Article 303 , part 3 of article 304, part 2 of article 305, part 3 of article 306, article 308);
crimes against traffic safety and operation of transport (part 3 of article 309, part 2 of article 310, parts 2 and 3 of article 311, article 313, part 3 of article 314, part 2 of article 316, part 3 of article 317, part 2 of article 319, part 3 Article 320);
crimes against public health (Article 323, part 3 of Article 325, parts 2 and 3 of Article 327, parts 2 - 4 of Article 328, parts 2 and 3 of Article 329, part 2 of Article 331, part 2 of Article 332, part 2 of Article 333, part 2 of Article 335, part 2 of Article 336, part 3 of Article 337, part 2 of Article 338);
crimes against public order and public morality (part 3 of article 339, part 2 of article 340, part 2 of article 344);
crimes against information security (part 3 of article 349, part 2 of article 350, part 2 of article 351, part 2 of article 354, part 3 of article 355);
crimes against administrative order (Articles 364, 366, Part 3 of Article 371, Part 2 of Article 3711, Part 3 of Article 376, Part 2 of Article 384);
crimes against justice (Article 388, part 2 of Article 392, part 3 of Article 393, parts 2 and 3 of Article 394, part 3 of Article 395, part 2 of Article 397, articles 410, 413);
crimes against the interests of the service (part 3 of article 424, part 3 of article 425, part 3 of article 426, article 428 (for acts resulting in the death of a person by negligence), article 430, parts 2 and 3 of article 431, part 3 of article 432, part 3 Article 433), unless otherwise provided by Article 6 of this Law;
crimes of conscripts, reservists and persons liable for military service (Article 434);
military crimes (part 2 of article 438, part 2 of article 440, part 2 of article 441, part 3 of article 443, part 4 of article 445, articles 446 - 449, parts 2 and 3 of article 450, part 3 of article 451, part 2 of article 453, parts 2 and 3 of Article 455, part 2 of Article 456, part 2 of Article 459, part 3 of Article 463, part 3 of Article 464, part 2 of Article 465);
persons listed in part one of Article 1, Articles 3 – 6 of this Law, convicted under the Criminal Code of the Republic of Belarus of 1960 for:
state crimes (part two of article 652, articles 68, 69, part three of article 71, article 741, parts two - four of article 75, article 78, part one of article 82, articles 83, 84, parts two and three of article 85);
crimes against property (parts three and four of article 87, parts three and four of article 88, article 89, parts three and four of article 90, parts two and four of article 91, article 93, parts two and three of article 96), unless otherwise provided Article 6 of this Law;
crimes against life, health, freedom and dignity of the individual (Articles 101, 106, part two of Article 1131, parts one – three of Article 115, Articles 119, 123, 1241);
crimes in the sphere of entrepreneurship and other economic activities (part two of Article 151, part two of Article 1514, part three of Article 1516, part two of Article 1526, part two of Article 160, part two of Article 1601), unless otherwise provided by Article 6 of this Law;
malfeasance (part two of Article 166, part two of Article 1661, part two of Article 167, Articles 169, 170), unless otherwise provided by Article 6 of this Law;
crimes against justice (part two of article 172, part two of article 173, part two of article 175, part two of article 177, article 184);
crimes against public safety, public order and public health (part three of article 201, part two of article 2011, parts two and three of article 206, parts two and three of article 2072, part two of article 2081, article 2082, part three of article 2101, part two articles 2111, article 2112, part two of article 2114, part two of article 212, part two of article 2121, part one of article 213, articles 2131, 2133, part two of article 2161, article 2191, parts two and three of article 2192, article 2193, part the second part of Article 2194, the second part of Article 220, the second part of Article 2201);
military crimes (paragraphs “b” and “c” of Article 227, paragraph “c” of Article 228, paragraphs “b” and “c” of Article 229, paragraph “c” of Article 230, Article 231, paragraph “c” of Article 233, paragraph “b” of Article 234, paragraphs “c” and “d” of Article 235, articles 236 – 238, paragraph “e” of Article 239, paragraphs “b” and “c” of Article 240, paragraphs “b” and “c” of Article 2401 , Articles 241 – 243, paragraphs “c”, “e” and “f” of Article 244, paragraph “c” of Article 245, paragraphs “c” and “d” of Article 246, paragraph “c” of Article 248, paragraphs “b” and “c” of Article 249, paragraphs “c” and “d” of Article 2491, Articles 250 – 253, paragraphs “a” and “b” of Article 254, Articles 255, 256);
persons who have been convicted more than twice with a sentence of imprisonment for intentional crimes, as well as previously convicted with a sentence of imprisonment for committing crimes specified in this article, paragraph nine of part one of Article 9 of this Law.
Article 8. Partial release from punishment for a period of one year:
persons who have been sentenced to restriction of freedom;
persons who have been sentenced to imprisonment;
persons paroled early from punishment in the form of restriction of freedom or imprisonment (Article 90 of the Criminal Code of the Republic of Belarus), as well as persons for whom the unserved part of the sentence in the form of imprisonment was replaced by a punishment in the form of restriction of freedom or correctional labor, or for whom the unserved part of the sentence in the form of restriction of freedom was replaced by punishment in the form of correctional labor (Article 91 of the Criminal Code of the Republic of Belarus).
Release from the unserved part of the sentence the persons listed in part one of this article, who, on the day of consideration of the materials on the application of the amnesty, have less than one year left before the end of their sentence.
This article applies to persons who committed crimes before the entry into force of this Law, and whose sentences were passed before the end of the period established by Article 20 of this Law.
Article 9. The amnesty provided for by this Law does not apply to persons:
to whom an amnesty or pardon was applied during 2005–2012 and who again committed an intentional crime during the period of an unexpunged or outstanding conviction;
who, on the day of the verdict and its entry into legal force, did not fully compensate for the harm (damage) caused by the crimes and the income received from illegal business activities, subject to recovery from them according to the verdict, court decision;
who, on the day of consideration of the materials on the application of the amnesty, did not fully compensate for the harm (damage) caused by the crimes and the income received from illegal business activities, subject to recovery from them under a sentence or court decision that has entered into legal force;
maliciously violating the established order while serving a sentence or other measures of criminal liability;
those who committed a particularly dangerous relapse of crimes (part 3 of article 43 of the Criminal Code of the Republic of Belarus);
in whom the death penalty has been replaced by pardon with a penalty of imprisonment or life imprisonment, or in which the penalty of life imprisonment has been replaced by a penalty of imprisonment;
those sentenced to life imprisonment;
who have committed crimes under Article 124, Part 2 of Article 139, Part 3 of Article 166, Part 3 of Article 167, Articles 285, 286, 289, 2901, 293, 3171, 342, 3431, 356 – 362, 367, 3693 of the Criminal Code of the Republic of Belarus , Articles 61 – 651, 67, 74, 742, 76, 100, part four of Article 115, Article 1891 of the Criminal Code of the Republic of Belarus of 1960;
put on the wanted list in connection with evasion from serving a sentence by a court verdict on the day of consideration of materials on the application of the amnesty;
convicted for crimes under Article 174 of the Criminal Code of the Republic of Belarus, and for other crimes committed during the period of work in organizations on the basis of a court decision, who, on the day of consideration of the materials on the application of the amnesty, did not reimburse arrears of alimony or expenses spent by the state on the maintenance of children in on state support.
The requirements of paragraphs three and four of part one of this article do not apply to persons listed in part one of Article 1 of this Law and subject to its action.
Article 10. The scope of this Law includes persons who committed crimes before the date of entry into force of this Law, including those convicted by the courts of the Republic of Belarus, as well as persons convicted by the courts of other states, but serving their sentences on the territory of the Republic of Belarus in accordance with international treaties of the Republic Belarus or transferred to serve a sentence of imprisonment on the territory of the Republic of Belarus on the basis of the principle of reciprocity.
Article 11. Paragraph two of part one of Article 1 of this Law applies to persons who have committed crimes under the age of eighteen.
Paragraph three of part one of Article 1 of this Law applies to women who are pregnant on the day this Law comes into force.
Paragraph four of part one of Article 1 of this Law includes women, widowed men, men raising children whose mothers are deprived of parental rights, men raising children and who are unmarried, subject to the following conditions:
these persons have children who are under eighteen years of age on the date of entry into force of this Law;
these persons are not deprived of parental rights.
The scope of paragraph five of part one of Article 1 of this Law includes men who have reached sixty years of age on the day of consideration of materials on the application of the amnesty, and women who have reached fifty-five years of age on the day of consideration of materials on the application of amnesty, and in the absence of documents confirming the day and month of birth, – men born before 1952 and women born before 1957.
Subject to paragraph six of part one of Article 1 of this Law are persons recognized in the prescribed manner as disabled people of group I or II on the day this Law comes into force; persons recognized in accordance with the established procedure as disabled people of group I or II during the period of implementation of this Law, the fact of whose recognition as disabled is not associated with intentional harm to their health; patients with an active form of tuberculosis assigned to groups I, II, V “A” or V “B” of dispensary registration, patients with oncological diseases of the second, third or fourth clinical groups, HIV-infected patients with the 3rd (pre-AIDS) and 4- th (AIDS) stages of the disease according to the clinical classification of the World Health Organization on the day of consideration of materials on the application of the amnesty.
Paragraph seven of part one of Article 1 of this Law covers persons who are veterans of military operations on the territory of other states in accordance with Article 3 of the Law of the Republic of Belarus dated April 17, 1992 “On Veterans” (Vedamastsi Vyarkhoonaga Saveta Respubliki Belarus, 1992, No. 15, Article 249; National Register of Legal Acts of the Republic of Belarus, 2001, No. 67, 2/787) and having certificates of the established form.
The persons specified in Article 12 of the Law of the Republic of Belarus dated January 6, 2009 “On the social protection of citizens affected by the Chernobyl nuclear power plant disaster and other radiation accidents” (National Register of Legal Acts of the Republic of Belarus, 2009, No. 17, 2/1561) or in similar laws of other states.
Article 12. Documents confirming the fact of compensation for harm (damage) caused by a crime and income received from illegal business activities are a certified certificate received from the court that passed the sentence or made a decision, and a certificate received from the accounting department at the place of serving the sentence (place work).
Article 13. When applying this Law to persons whose sentence was previously reduced by pardon or amnesty, one should proceed from the term of punishment established in accordance with acts of pardon or amnesty.
Article 14. When applying this Law, convictions expunged or withdrawn in the manner established by Articles 97, 98 of the Criminal Code of the Republic of Belarus (Article 54 of the Criminal Code of the Republic of Belarus of 1960), as well as convictions for crimes for which liability is not provided for by the Criminal Code, are not taken into account. The Republic of Belarus.
Article 15. The following persons should be considered as maliciously violating the established order while serving a sentence or other measures of criminal liability:
who committed violations of the order and conditions of serving a sentence in the form of public works, listed in Article 28 of the Criminal Executive Code of the Republic of Belarus, on the day this Law came into force;
who committed violations of the procedure and conditions for the execution of punishment in the form of a fine, listed in Articles 29 and 30 of the Criminal Executive Code of the Republic of Belarus, on the day this Law came into force;
having at least two penalties for violations listed in Part 1 of Article 43 of the Criminal Executive Code of the Republic of Belarus, which have not been repaid or removed in the prescribed manner on the day this Law comes into force;
having at least three penalties listed in parts 2 and 3 of Article 55 of the Criminal Executive Code of the Republic of Belarus, not repaid or not removed in the prescribed manner on the day this Law comes into force;
having penalties specified in part 1 of Article 117 of the Criminal Executive Code of the Republic of Belarus, not repaid or not removed in the prescribed manner on the day this Law comes into force. Penalties imposed before the verdict entered into legal force are not taken into account;
who committed an intentional crime after the verdict was passed, but did not begin serving a sentence in the form of arrest, restriction of freedom, or imprisonment;
who have committed an intentional crime while serving a sentence of arrest or imprisonment;
who committed an intentional crime while serving a sentence in the form of restriction of freedom, if, under a newly imposed sentence, they served less than one year of the sentence imposed by the court on the day this Law came into force;
who committed an intentional crime during the unserved period of their sentence after parole, if, under a newly imposed sentence, they served less than one year of the sentence imposed by the court on the day this Law came into force;
who committed an intentional crime while serving a sentence in the form of correctional labor, if, under a newly imposed sentence, they served less than one year of the sentence imposed by the court on the day this Law came into force;
transferred from correctional colonies-settlements to correctional colonies of other types for malicious violation of the established procedure for serving a sentence, if less than one year has passed from the date of the decision on transfer to a correctional colony to the day this Law came into force;
who committed an intentional crime during the period of deferment of execution (Article 77 of the Criminal Code of the Republic of Belarus), deferment of execution of the sentence (Article 441 of the Criminal Code of the Republic of Belarus of 1960), probation (Article 78 of the Criminal Code of the Republic of Belarus, Article 43 of the Criminal Code of the Republic of Belarus of 1960) , deferment of serving a sentence (Article 93 of the Criminal Code of the Republic of Belarus), if they have served less than one year of the sentence imposed by the court on the day this Law comes into force;
sent to correctional institutions on the basis of paragraph 1 of part 6 of Article 90 of the Criminal Code of the Republic of Belarus and who have served less than six months of the unserved sentence on the day this Law comes into force;
sent to correctional institutions on the basis of part 6 of article 77 or part 7 of article 78 of the Criminal Code of the Republic of Belarus and who have served less than six months of the unserved sentence on the day of consideration of materials on the application of the amnesty;
transferred to prison from correctional colonies in accordance with paragraph 3 of part 5 of Article 69 of the Criminal Executive Code of the Republic of Belarus for malicious violation of the established procedure for serving a sentence on the day this Law came into force.
Article 16. This Law applies to persons with sexually transmitted diseases only after they have been treated in accordance with clinical protocols. The basis for recognizing a completed course of treatment for a convicted person for a sexually transmitted disease is a medical report.
To persons serving a sentence of imprisonment in correctional institutions, suffering from chronic alcoholism, drug addiction or substance abuse, to whom the court has applied compulsory security measures and treatment, this Law applies only after completion of the course of treatment, including after the expiration of the period established by article 20 of this Law. The basis for recognizing a convicted person’s course of treatment for chronic alcoholism, drug addiction or substance abuse as completed is a court order to terminate compulsory treatment.
To organize the necessary medical care for patients with an active form of tuberculosis released from correctional institutions, assigned to groups I, II, V "A" or V "B" of dispensary registration, correctional institutions must inform local executive and administrative bodies and health care organizations about the release of these persons at the place of residence.
Patients with an active form of tuberculosis are required to contact the appropriate health care organizations upon arrival at their place of residence for further provision of medical care.
Article 17. The implementation of this Law shall be entrusted to:
bodies and institutions executing punishment - in relation to convicts in correctional institutions, arrest houses, pre-trial detention centers, open correctional institutions, as well as persons detained in pre-trial detention centers, the sentences in respect of which have entered into legal force;
criminal prosecution bodies - in relation to persons whose crimes are being investigated by these bodies;
courts – in relation to persons:
criminal cases of crimes that are pending in the courts and have not been considered on the day this Law comes into force;
criminal cases whose crimes have been considered, but the sentences have not entered into legal force, as well as persons in respect of whom the sentences have entered into legal force, but have not been sent for execution on the day this Law comes into force;
sentences in respect of which are considered in cassation or supervisory proceedings;
sentenced to a fine, if the fine has not been collected before the entry into force of this Law;
internal affairs bodies - in relation to persons:
those sentenced to punishment in the form of arrest, imprisonment, but not in custody, the sentences in respect of which have entered into legal force, persons sentenced to punishment in the form of restriction of freedom with direction to an open correctional institution, but not sent to the place of serving the sentence, as well as persons sentenced to punishment in the form of restriction of freedom without being sent to an open correctional institution;
those serving sentences in the form of community service, deprivation of the right to hold certain positions or engage in certain activities (as the main type of punishment), correctional labor, as well as persons sentenced with a suspended sentence, conditional non-application of punishment, convicted without imposition of punishment;
parolees, as well as persons for whom the unserved part of the sentence was replaced with a more lenient punishment before the expiration of the period established by Article 20 of this Law.
Article 18. The decision on the application or non-application of this Law is made in relation to each person individually.
In the absence of the necessary information, consideration of the issue of application of this Law is postponed until additional materials are received. The bodies entrusted with the implementation of this Law are given the right to request from the relevant institutions documents and other materials necessary to resolve issues related to the application of this Law. Such requests are executed immediately.
If there were no grounds for refusal to apply the amnesty on the day this Law came into force, then the absence of a decision to apply the amnesty cannot be considered as a circumstance preventing the application of the amnesty in the future. In this case, an amnesty may be applied to a person after the expiration of the period established by Article 20 of this Law.
Article 19. The application of this Law is carried out by decision of the head of a correctional institution, pre-trial detention center, open correctional institution, internal affairs body, body of inquiry, approved by the prosecutor, or by decision of the investigator or prosecutor. The said resolution is accompanied by a certificate of incentives and penalties, a personal file and other documents necessary to resolve the issue of applying the amnesty.
When applying an amnesty to a person released from punishment in accordance with Articles 90 or 91 of the Criminal Code of the Republic of Belarus, copies of the verdict, court decision (ruling) and a criminal record certificate are attached to the resolution of the internal affairs body.
When considering materials on the application of amnesty by the courts, the participation of the prosecutor is mandatory.
Article 20. This Law is subject to execution within six months from the date of its entry into force.
Article 21. The Council of Ministers of the Republic of Belarus, local executive and administrative bodies shall ensure:
organizing timely registration of persons released from punishment on the basis of this Law, and providing them with assistance in everyday life and work;
identification of persons released from correctional institutions, arrest houses, pre-trial detention centers, open correctional institutions, who have lost social ties and have reached the age entitling them to an old-age pension on a general basis, as well as disabled people of group I or II who have lost full or partial ability for self-care, in need of care, assistance, household and medical services, in special boarding houses (departments) for the elderly and disabled in accordance with indications, medical indications and contraindications for placing citizens in social service institutions approved in accordance with the legislation of the Republic of Belarus , if they do not have able-bodied family members or other individuals or legal entities obligated by law to support them (based on an annuity agreement with the provision of funds for maintenance, a lifelong maintenance agreement with dependents).
Article 22. Local executive and administrative bodies:
ensure timely registration of minors exempted from punishment on the basis of this Law after their arrival at their place of residence, their employment or transfer under the control of parents, guardianship authorities, placement in orphanages, if necessary, placement in boarding schools, vocational schools schools;
take the necessary measures to carry out educational work among the persons specified in paragraph two of this part, to prevent them from committing new crimes.
Health care organizations at the place of residence of persons released in accordance with this Law from correctional institutions, arrest houses, pre-trial detention centers, open correctional institutions due to illness, ensure the provision of medical care to these persons on an outpatient or inpatient basis, dispensary observation of them in the manner established legislation of the Republic of Belarus.
Article 23. This Law comes into force on the day of its official publication.
President of the Republic of Belarus
A. Lukashenko
For information
Article 12 of the Criminal Code of the Republic of Belarus. Categories of crimes
1. Crimes, depending on the nature and degree of public danger, are divided into crimes that do not pose a great public danger, less serious, serious and especially serious.
2. Crimes that do not pose a great public danger include intentional crimes and crimes committed through negligence, for which the law provides for punishment in the form of imprisonment for a term of not more than two years or another more lenient punishment.
3. Less serious crimes include intentional crimes, for which the law provides for a maximum penalty of imprisonment for a term of no more than six years, as well as crimes committed through negligence, for which the law provides for a penalty of imprisonment for a term of over two years.
4. Grave crimes include intentional crimes for which the law provides for a maximum penalty of imprisonment for a term of not more than twelve years.
5. Particularly serious crimes include intentional crimes for which the law provides for punishment in the form of imprisonment for a term of over twelve years, life imprisonment or the death penalty.
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