The nuances of the amnesty and the legal consequences for the client were discussed with LHS students Ihor Svetlichny, a practicing lawyer, criminal procedure specialist, and Hanna Kolesnyk, a lawyer and chairman of the Human Rights Committee of the National Bar Association of Ukraine.
What is meant by amnesty? – This question was asked by the audience speakers at the beginning of the lecture. Amnesty is a full or partial (replacement of a milder one) exemption from criminal liability and punishment of a certain category of persons guilty of crimes. Amnesty is declared by the law of Ukraine for a certain category of persons. The right to amnesty can be granted to any individual every 10 years.
The basic law regulating the issue of amnesty is the Law of Ukraine “On the application of amnesty in Ukraine”, and additional – the law on amnesty in a particular year. Igor Svetlichny drew attention to the fact that if a person applied for amnesty at a time when a new law on amnesty was issued in a particular year, the law on amnesty in a particular year, which was in force at the time of the crime.
The court decides on the application of amnesty on the initiative of the prosecutor, body or institution of execution of punishments, as well as on the initiative of the accused (defendant) or convict, their defenders or legal representatives.
The lecturers stressed that the amnesty is not applied automatically. The decision on the application or non-application of amnesty is made by the court for each person individually after a thorough examination of the personal file and information about the behavior of the convict while serving his sentence. The person is summoned to court and can give an explanation.
Igor Svetlichny noted that persons convicted of crimes that under the amnesty law are subject to release from serving (further serving) punishment, are released no later than three months after the publication of the amnesty law. But this does not mean that amnesty is possible only for three months. Such a term is set for officials of penitentiary institutions, the prosecutor’s office and the court, so that they do not procrastinate with the application of the Law of Ukraine “On Amnesty”, the lawyer stressed.
An application for amnesty may be submitted by the penitentiary institution and the convict. If the convict submits, all necessary documents are removed from the criminal case of this person.
The Law of Ukraine “On the Application of Amnesty in Ukraine” defines the range of persons in respect of whom the application of amnesty is not allowed. In particular, persons convicted of corruption offenses for which sentences have not entered into force cannot be released from serving a sentence, and persons convicted for sentences for which they have not entered into force cannot be fully released from the law on amnesty from serving a sentence. .
Anna Kolesnyk focused on the issue of jurisdiction over amnesty. Thus, during the execution of the sentence the issue of application of the amnesty law, given the content of the provisions of Part 6 of Article 9 of the CPC of Ukraine, must be decided in accordance with the law on amnesty by the local court within the territorial jurisdiction of the sentence. 539 of the CPC of Ukraine). The lecturer noted that the question arises: what to do if the sentence is not yet executed? Judicial practice is based on the fact that if the convict is not currently serving his sentence, but is at large, his right to apply to the court for amnesty can be decided only at the place of residence. Ms. Kolesnyk gave examples of court decisions for various cases of amnesty (in seemingly hopeless cases). The lecturers also shared with the audience unusual techniques and methods of defense. Lawyer Kolesnyk told the nuances of forming a win-win strategy for the client on a positive example. The speakers drew attention to Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which relate to issues of fair trial and judicial review and will be useful, inter alia, in matters of judicial review of amnesty and pardons.