Journal article Open Access
Yu.D. Batan, A.S. Humeniuk
This article deals with the concept, essence of the institution of exemption from criminal liability and challenges of the functioning of this institution.
The objective of the institution of exemption from criminal liability is to prevent the restriction of human rights by bringing the violator to criminal responsibility that is not proportional to its objectives.
The Plenum of the Supreme Court of Ukraine defined the concept of exemption from criminal liability in 2005. This definition does not correspond to the modern realities of the development of criminal legal science and practice. In particular, while it is mentioned that, in fact, a State refuses to impose penal measures on a person, it is not specified why such a refusal exists. There is a need to establish in article 44 of the Criminal Code a definition that will reflect the imposition of the investigational institution more accurately, as its application is not only a clemency of the State against the perpetrator of the crime, but is based on the fact that the objectives of punishment are achieved without the actual prosecution of the perpetrator.
Another problem is that the criminal legislation of Ukraine does not provide for the quantitative restriction of the application of exemption from criminal liability to a particular person. His absence calls into question the very existence of this institution, since in a situation of repeated commission of a crime by a person against whom such exemption has been applied, it can be said that neither the purpose of exemption from criminal responsibility nor the purpose of punishment in general has been achieved against him.
Another challenge is the issue of the patterns for the application of exemption from criminal liability. The main reason is the commission of the crime for the first time. However, the Criminal Code of Ukraine does not specify what should be understood by the crime committed for the first time.
The question of taking into account the identity of the perpetrator in the application of exemption from criminal liability is also controversial, since the criminal law does not regulate this issue, however, the analysis of national judicial practice makes it possible to conclude that the courts take into account the identity of the perpetrator when deciding on exemption from criminal liability. We consider this approach to be perfectly justified, since taking such a factor into account gives the court the opportunity to determine whether a person deserves such release more accurately and to assess the risk of his re-commission of a crime.