Criminal Legal Problems of Application Amnesties in Ukraine and the Ways to Solution

Abstract

The article deals with problematic issues related to the application of amnesty in Ukraine. It is noted that amnesty, among other types of release from punishment or from serving it, occupies a special place, determined by a number of circumstances. Evidence of this is the regulation of the institution of amnesty by various branches of law - constitutional, criminal, criminal procedural, penitentiary. Therefore, there is a need to clarify the legal nature of this institution and its essence. Thus, a number of scientists attribute the institution of amnesty to the sphere of constitutional law, other researchers note that the institution of amnesty belongs to the sphere of criminal law. In our opinion, the institution of amnesty is complex and cross-sectoral, because the rules on amnesty combine elements of constitutional, criminal, criminal procedural and penal law and, next to pardon, form the institution of a multi-sectoral institution of state apology for criminals.

It is noted that one of the biggest problems in applying the amnesty is that its provisions are not clearly enshrined at the legislative level. For example, the relevant condition for the application of an amnesty is the presence of positive changes in the behavior of the convict, that is, release from serving a sentence will be fair and safe only when the person can prove by his behavior that he is really worthy of such release. But, unfortunately, in practice there are only requirements that the convict, at the time of deciding on the application of an amnesty to him, does not raise discipline in the very institution for the execution of punishment, and direct correction of the person is not required. It is noted that it is necessary to fix clear requirements and norms of behavior of an amnestied person in the legislation, the observance of which would give him the right to be released from serving a sentence by applying an amnesty in specific conditions.

The attention is focused on the fact that one of the main criteria for amnesties in Ukraine is the level of recidivism, as well as the structure of recidivism of amnestied persons. Thus, the bulk of new criminal offenses committed by amnestied persons falls within a period of up to three years from the date of dismissal. At the same time, most of the criminal offenses are committed in the first year after dismissal, in the future, the intensity of recidivism gradually decreases. Therefore, an important factor in the development of the institution of amnesty and increasing the effectiveness of the use of amnesty in Ukraine is to improve the level of social rehabilitation and social adaptation of amnestied persons.

It is noted that the use of amnesty is also problematic in cases where the person at the time of the commission of the criminal offense was sane, but during the serving of the sentence she fell ill with a mental illness and to which compulsory medical measures were applied. It also reveals a controversial issue regarding the duration of the amnesty. Thus, the period set by the legislator within three months is the goal of applying the amnesty law as soon as possible, so the expiration of the three-month period cannot be an obstacle to the application of the above-mentioned institution. After all, if persons are subject to amnesty, then their rights should not be violated.