Both amnesty and pardon are a full or a partial exemption from criminal responsibility, which implies cancelling or lightening the penalty and expunging of the criminal record. Nevertheless, there are a few differences between them.
- is issued by the State Duma with respect to an indefinite set of people: those amnestied are not listed by name;
- is already possible starting from the moment the criminal proceedings are initiated;
- does not take the convicted persons’ wishes into consideration: the decision to grant an amnesty is usually driven by political interests.
Example: Decree of Amnesty dated 2001 with respect to minors and women: about 9% of all prisoners fell under it.
- is granted by the President with respect to a specific person;
- is possible only after a sentence has become effective;
- is usually initiated by the convicted persons themselves: one needs to file a petition.
Example: Decree of Pardon with respect to a Ukrainian servicewoman Nadiya Savchenko who was convicted of murder of VGTRK journalists in Donbass.
According to the Criminal Code, the law that was in effect at the time the crime was committed (ст. 9 УК). Suppose citizen D commited a robbery and was arrested three years later. In the meantime the law had changed, but according to the principle of operation of criminal law in time, D. will be tried under the older article that was in effect at the time of the robbery.
However, in some cases the law can have a retroactive effect. For instance, if the penalty has become milder, the new and more favorable rules will be applied, and if the article has been repealed, the charges will be dropped or the criminal record will be expunged. In case the law has become stricter, the proceedings will be held under the older article (article 10 of the Criminal Code). As a result, cases pertaining to the articles that are no longer valid are sometimes included in the criminal statistics, which makes the data analysis more difficult and can distort the results.
Уголовный кодекс выделяет три типа наказаний:
- primary —which can act as standalone punishments;
- additional — which can be added to the primary ones in order to stiffen the sentence;
- mixed — which can be used in both respects.
The decision to add an additional penalty to the primary one is generally made by the judge, although in legal practice the following correlation can be seen: if an offence is simple and there are no aggravating circumstances - which means that a person is tried for one offence - the court is likely to restrict itself to imposing a primary penalty; in case there is an additional qualification or aggravating circumstances in the case, there is a higher probability that an additional penalty will be imposed as well.
Can be used as additional penalty: fine, deprivation of the right to engage in certain activities, deprivation of a special or a military rank, deprivation of an honorary title, and other punishments can be used as additional penalties (article 45 of the Criminal Code).
A crime is considered incomplete if only preparations for it or an attempt to commit it have taken place
Preparation — это любые намеренные действия, предшествовавшие преступлению или покушению, например, подготовка орудий, поиск соучастников или сговор.
Attempt — is a failed deliberate attempt to commit a crime. Omission can also be considered an attempt. For example, if a cashier deliberately left the cash register open to steal money from it afterwards.
Minor and average incomplete crimes (infliction of a light injury, defamation or murder in a state of passion) are not prosecuted by law, but serious and particularly serious cases (premeditated murder, robbery, rape) are criminally punishable, but are assessed more mildly. Thus, the sentence for preparation may not exceed half of the maximum sentence for the same completed crime, the sentence for attempted murder — three-quarters.
Formally criminal actions, infliction of a grave injury for example, are not prosecuted by law in case they'd been provoked by extraordinary external factors. In that case infliction of injury is not criminally liable. The Criminal Code specifies six such situations (chapter 8 of the Criminal Code):
Protection of the defender or other persons' self and rights. It is important that the scale of the defense is adequate to the danger, otherwise it can be criminalized.
Example: defence against assault in a park.
- Detention of a person who has committed a crime
Damage can be inflicted if the criminal has committed a complete crime and is trying to escape.
Example: during an attempt to detain a thief you break their arm.
- Extreme necessity
A situation where one unlawful act is necessary to exclude another unlawful act which is more grave. Or a conflict of two mutually exclusive rights, in which realizing one means violating the other.
Example: in an emergency, a doctor has to save the patient whose death risk is greater.
- Physical or mental coercion
If actions are committed as a result of a coercion and not by a person’s own will, the actions are not considered as a crime.
Example: under torture, a person is forced to slander their neighbour from the same floor.
- Justified Risk
A risk related to scientific, commercial or business activities, production or human resource management.
Example: tests of a missile that may lead to casualties.
- Execution of an order
Given relevant authority and having the duty to execute an order, an official may inflict harm. If an order or an instruction is known to be illegal, criminality is not excluded.
Example: murder in a war.
The main difference between exemption from punishment and termination of criminal prosecution is that in the first case a person remains guilty of a crime, despite the penalty being lightened (Article 12 of the Criminal Code), and in the second case all charges are dropped (Article 27 of the Criminal Procedural Code).
Exemption from punishment applies only after a sentence becomes effective. It can be related to the convicted person’s illness or addiction, changes in the situation, expiration of the statute of limitations.
Example: in 2017, attorney К. was exempted from a fine of 100 000 rubles for bribery due to expiration of the statute of limitations for criminal prosecution.
Termination of criminal prosecutionmay take place on exculpatory and non-exculpatory grounds, as well as due to the absence of procedural conditions for continuation of the prosecution.
Example: In 2019 has been terminated уголовное преследование в отношении журналиста Ивана Голунова, которого обвиняли в покушении на сбыт наркотиков. МВД объяснило это решение тем, что причастность Голунова к преступлению не была доказана.
An offence is considered to be a set of specific actions that are prosecuted by law and constitute grounds for criminal liability. If there are several crimes within one case, a primary and additional offences are established. For instance, suppose a defendant, in addition to murder, has committed a theft and used narcotic substances in a public place. The gravest of these crimes is premeditated murder. Provided that the court shall hear these cases together, it will be considered as the primary offence, and the acts of lesser gravity will be considered as additional.
Penalties are imposed separately for each crime and are largely dependent on the primary offence, whereas the additional offences are summed with the primary one by special formulas or absorbed (Article 69 of the Criminal Code). In order to make it easier to make sense of the published data, we have prepared a detailed outline of offences, sentencing and collecting data on these parameters.
If a defendant’s mental condition presents a danger to themselves or to others, the court may impose compulsory treatment (Article 15 of the Criminal Code). This happens in the following cases:
- the crime was committed in a state of insanity;
- the psychiatric condition has manifested after the crime had been committed, and it is impossible to impose and execute a penalty;
- the defendant is sane but has a mental illness and is dangerous;
- the defendant has committed a crime against a minor’s sexual inviolability.
The time spent in a psychiatric hospital is included in a convicted person’s sentence, and if the convicted person is found to have recovered, the criminal case will be reopened.
All the types of labour provided by the Criminal Code can be assigned only as primary penalties — which means that they can only serve as standalone penalties, not as additions to other penalties.
Mandatory labour: community service (Article 49 of the Criminal Code)
- assigned for crimes of minor and medium gravity;
- include community service during the time not taken by the convicted person’s education and main occupation;
- execution period: 60 to 480 hours, not more than 4 hours per day.
Example: infliction of a grave injury to health, threat of murder, violation of the inviolability of the home, repeated punishment for DUI.
Labour — additional income tax (article 50 of the Criminal Code)
- assigned for crimes of minor and medium gravity;
- suppose charging from 5 to 20% of the convicted person's salary to the state income;
- period of execution is from 2 months to 2 years.
Example: theft, failure to pay child support, violation of the inviolability of the home or insulting a representative of the authorities.
Forced labor — an alternative to imprisonment (article 53.1 of the Criminal Code)
- assigned for small and average crimes, as well as for serious ones, if they are committed for the first time;
- the convicts live in the correctional center of the Federal Penitentiary Service and receive a salary, 5 to 20% of which also goes to the state income;
- period of execution is from 2 months to 5 years.
To exculpatory groundsof termination of criminal prosecution contribute:
- lack of participation in the crime;
- absence of a crime event;
- absence in the act actionable offense (article 212 of the Criminal Procedure Code).
In this case, the court recognizes the former defendant's right to compensation for property and moral damage and restoration of a right to labor, pension, housing and other rights (article 133 of the Criminal Procedure Code).
Toto non-exculpatory groundsbelong to:
- expiration of the statute of limitations for criminal prosecution;
- active repentance of the suspect;
- reconciliation of the parties;
- death of the suspect or the accused;
- decree of amnesty;
- adoption of a law abolishing the criminality or the punishability of a deed;
- compensation of damages in case the crime was related to economic activity;
Termination of criminal prosecution on non-exculpatory grounds is possible only with the consent of the defendant, because it implies voluntary admission of guilt and acceptance of consequences.
- A real cumulative crime means that a person has committed several crimes consecutively. For instance, a person first publicly called for the overthrow of the constitutional order, and an hour later they ran over a pedestrian.
- An ideal cumulative crime means that a person has committed several crimes at once in one act. For instance, underwent a training program in a terrorist organization (Article 205.3 of the Criminal Code) participating in it at the same time (Article 205.4 of the Criminal Code).
Such cases where one or several persons commit a series of crimes can be consolidated into one case and go to trial together. The penalties are imposed for each crime committed under a relevant article. Article 69 of the Criminal Code contains the instruction on summing up the penalties depending on the gravity of the crimes and on the penalties imposed for each crime. If the cases were tried separately, the cumulative sentence rule is applied (Article 70 of the Criminal Code).
A court fine is one of the ways to be exempted from criminal liability, and is considered to be grounds for termination of a case, but it is not one of the penalties (see Fine). If a person had committed a crime of little or medium gravity (for which one can be sentenced to up to 5 years of imprisonment), and then made amends and reconciled with the plaintiff, a court fine can be assigned, in which case the defendant will have no official criminal record.
Such practice is a compromise between the parties in criminal proceedings. Its advantage lies primarily in humaneness and simplified legal proceedings. Having only appeared as early as in 2016, this practice is a recent occurrence in Russian criminal law, but it is being used more and more. In 2017, more than 20 000 court fines were issued, and the number of the court fines issued in 2019 is in excess of 52 000.
A fine is one of the penalties. In some criminal cases a fine is imposed as the primary penalty, which means that the accused person’s conviction will remain on their record, they pay the fine and avoid imprisonment. In other cases a fine is imposed as an additional penalty, which means that the person serves a harsher sentence and, in addition to that, pays a certain amount of money to the state. When calculating statistics, one cannot simply add up the number of the cases of the first and the second type: it will be a mess, because the data represent different types of situations.
The fine amount is dependent on the severity of the crime and on the convicted person’s financial situation. Sometimes a court can impose a fine to be paid in installments for a period of up to five years.