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§2. System of the basic written pleadings at clearing of the criminal liability and of criminal prosecution

Quick-wittedness not too paints the person if it is not accompanied by fidelity of judgements. Not those hours are good, that that show an exact times go quickly, and

The hatch de Klape de Vovenarg

Is standard logic formula of the mechanism of criminally-legal regulation allows to resolve and such interbranch problem as clearing of the criminal liability certificates of the inspector, the head of the organ of inquiry, the investigator and the public prosecutor.

As it was already marked, analogue of clearing of the criminal liability in criminal law is the institute of the termination of criminal case in criminal trial. The decision of a question on a role and a criminal prosecution place, and, in turn, the criminal liability in the mechanism of criminally-legal regulation, and actually definition of the introduction of a verdict of guilty of court in validity the initial moment of approach of the criminal liability, sets system of written pleadings that has basic value for the criminal trial.

For example, at application of institute of statute of limitation in criminal cases. If to recognise, that the criminal liability arises from the moment of committing a crime the prescription of attraction to criminal ответственности227 in general [226] loses any sense. If the criminal liability beginning priznatv attraction as convicted the expiration of limitation periods will be protivorechitv to the operating criminal law. Statvja 78 UK the Russian Federation, speaking about prescription of bringing to criminal liability, means not protsessualvnoe action of attraction as convicted, and coming into force obvinitelvnogo a court sentence. CHastv 4 items 81 UK the Russian Federation указвівает, that «persons... In case of them is nija can podlezhatv to the criminal liability and punishment if have not expired limitation periods».

Differently, if the person at whom after committing a crime there has come the mental derangement doing nevozmozhnvsh appointment or execution of punishment, has faced the charges, court concerning it vvshes the decision about clearing of punishment and application prinuditelvnoj мерві medical character it does not come under to the criminal liability, on - skolvku not vvshesen a verdict of guilty. The above-named decision does not mean by itself «any other written pleading resolving business in essence» [227 [228]. Therefore it is necessary to recognise, that limitation periods of bringing to criminal liability concerning such person continue to be counted and during its treatment, and the criminal liability comes at the moment of the introduction of a sentence of court into validity.

At last, there is one more important reason, vvshuzhdajushchee utverzhdatv, that the institute of clearing of the criminal liability, in particular, on nereabilitirujushchim to the bases in its modern embodiment and the doctrinal interpretation is imperfect from the point of view of legal technics.

In the criminally-legal literature the given institute applications to it provided ugolovnvsh the law принудителвнвіх measures of criminal character (punishment) »[229] or, that almost same, as« refusal of the state of realisation of the rights of the last by a recognition of the person vinovnvsh in committing a crime »[230] understand as« refusal of the state in the name of the bodies which are carrying out borvbu with prestupnostvju, from condemnation (censure) of the person who have made socially dangerous act, and.

However, otkazatvsja it is possible lishv from fulfilment of those actions, koto - рвіе enter into a circle of your powers, and inspectors but, nelvzja otkazatvsja from that fulfilment, on fulfilment of that тві it is not authorised, as well as disclaimer a cart - lagatv criminal responsibility on the concrete person on behalf of the state. The specified power belongs lishv to court, and it arises at court tolvko during criminal case consideration in session of the court, instead of at any stage of the criminal trial. And poskolvku the public prosecutor, inspectors, investigators have not the right priznavati the person vinovnvsh in committing a crime and naznachati to it punishment on behalf of the state (item 1 ч.1 item 29 UPK the Russian Federation) they cannot and отказвіватвся from the right of clearing of the person not belonging to them from the criminal liability. Hence, clearing of the criminal liability is possible tolvko under the decree that will not always be adjusted with the law. Meanwhile, inquisition is not casual under the Charter of the criminal trial of 1864 could бвітв is ceased tolvko by court. When judicial inspectors did not find the bases prodolzhatv predvaritelvnoe a consequence, that, having suspended manufacture, asked for dismissal of action the leave of court

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Through the public prosecutor (item 277)

The competence of the public prosecutor, the inspector and the investigator includes fulfilment of actions, направленнвіх on criminal prosecution realisation (item 21 UPK the Russian Federation). The purposes of these actions - to expose the person in committing a crime, to bring court an attention to the question on possibility or impossibility its recognition guilty of committing a crime and application of measures of criminally-legal character. Accordingly, the public prosecutor, the inspector, the investigator can refuse in the presence of the statutory bases only criminal prosecution. The given conclusion proves to be true also positions Modelling UPK for the state-participants CIS where in item 37 the legal design is fixed

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«Refusal of criminal prosecution realisation»

The criminally-legal design of considered institute is based on till now very few people challenged position, that «... Clearing of the guilty person of the criminal liability for the committed crime consists in its clearing of removal of a negative estimation of its behaviour in the form of a verdict of guilty» [231 [232] [233]. This concept also has been taken as a principle gl. 11 Criminal codes of the Russian Federation which if to develop in the criminal procedure plan, the inspector, the investigator or the head of the organ of inquiry will turn out, that during, for example, preliminary investigation, perceiving a probable verdict of guilty of court as a certain legal reality, release the person from condemnation on a court sentence, ceasing criminal case and by that releasing the person from the criminal liability. Here that remedial "stumbling-block" of financially-legal design of clearing of the criminal liability in the mechanism of criminally-legal regulation as it is absolutely clear also is put in pawn, that neither the inspector, nor the investigator, any other participant of the criminal trial (besides court) under no circumstances cannot foreknow, what decision will accept court under merits of case.

Let's consider two situations. The inspector, having to that all material and remedial bases, decides to cease manufacture on business owing to the certificate about amnesty (item Z ch. 1 items 27 UPK the Russian Federation). Convicted, being guided by the most various reasons, does not object to the termination, and it is considered, that it is released from the criminal liability. But if to change a condition of an incident and to present, that the convicted has decided to object (ch. 2 items 27 UPK the Russian Federation), and then, let us assume, during proceeding the court has not found out in act of the corpus delicti and has enacted the verdict of "not guilty". From what then it was released convicted of the first case if how it was found out, it does not come under to the criminal liability, after all the termination of criminal case owing to the certificate about amnesty - the basis nereabilitirujushchee, and the person is considered lawfully subjected to criminal prosecution? From the criminal liability? It is thought, that at present treatment of institute of clearing of the criminal liability it not absolutely so.

Business in that, in this case is lost sight original enough idea - process is the substantive law which is in a condition of uncertainty [234]. Differently, while criminal case is not authorised court in essence,

The material criminal law, including question on the criminal liability, continues to remain objectively uncertain, «is in a hibernation condition». In this case it is possible to speak only about clearing of the possible, potential criminal liability of the person. The person in this case is released not from the criminal liability in material sense, and from criminal prosecution in sense remedial as criminal prosecution realisation not always leads to the further development of the is standard-logic formula of the mechanism of criminally-legal regulation (to the criminal liability and punishment).

Such decision of a question allows to overcome one more contradiction connected with institute of clearing of the criminal liability, concepts "criminal prosecution" and "bringing to criminal liability". If to admit, that the moment of attraction of the person to the criminal liability is its attraction as convicted which begins removal of the corresponding decision by the inspector or the indictment (the accusatory decision) the investigator 28, 281 Codes of Criminal Procedure of the Russian Federation or, for example, item 300 of the Criminal code of the Russian Federation turn out, proceeding from sense of item 25, that the person can be released from the criminal liability from the moment of criminal case excitation in quality «the person suspected...» I.e. Both to, and after the moment of its attraction as the convicted. Hence, the person can be released from the criminal liability still until as it is involved in it (under condition of fidelity of the made assumption). There is a reasonable question - if the person is not involved in the criminal liability from what it then is released? After attraction as convicted it, let us assume, is released from the criminal liability, but after all till this moment it can be released only from criminal prosecution. This thought completely confirms conclusions that speech about clearing of criminal prosecution, instead of of responsibility in this case is led. However, solving thus the given problem, the answer to the brought attention to the question only under the form, but not under the maintenance is received. And that is why.

Having excluded from gl. 11 UK the Russian Federation norm about clearing of the criminal liability in connection with change of conditions and having entered it in gl. 12 «Clearing of punishment», legislators has designated a problem soderzhatelvnogo the character, connected with the termination of criminal case (criminal prosecution) on so назвіваемвім nereabilitirujushchim основаниям235, in particular: compensation of the damage caused to budgetary system of the Russian Federation in rezulvtate of committing a crime in sphere economic dejatelvnosti; reconciliation of the parties; the expiration of limitation periods of criminal prosecution; dejatelvnoe repentance and the amnesty certificate.

In the l list еннвіх cases the termination of criminal case (criminal prosecution) puts the criminal procedure law in dependence on will suspected or convicted. Thus, if convicted or the suspect agrees with the criminal case termination it turns out, that as the fact of the termination of criminal case on such basis, and the come consequences (for example, the transfer to the reserve from bodies of military Office of Public Prosecutor for fulfilment of the offences discrediting a rank of the officer) it admits guilty fulfilment of act incriminated to it, otherwise, the criminal case termination in the specified cases though assumes clearing of the person of the criminal liability, ascertaining of is regarded pravoprimenitelnoj by practice as based on materials of investigation that the person has made the act containing signs of a crime and consequently the decision on dismissal of action does not involve rehabilitation of the last (its recognitions innocent). In such conclusion result also positions of the Conclusion of Committee of the constitutional supervision of the USSR from September, 13th, 1990 № 2-8, clearings providing possibility of the criminal liability of the person who have made act, containing signs of the crime which are not representing to the big social danger if it has been recognised, that its correction and re-education [235] is possible without punishment under criminal law application. «In this case (zdesv is available in view of a case of change of conditions - JU.K.) criminal proceeding comes under to the termination, and to the person official penalty or social influence measures are applied. According to these norms of the decision on the criminal case termination, persons establishing guilt (!? It-is allocated by me - JU.K.) In fulfilment of such act, can prinimatvsja and widely are accepted at a stage predvaritelvnogo investigations. Under the state account according to Instruction paragraph 12 about the uniform crime reporting, approved Generalvnym the public prosecutor of the USSR on December, 30th, 1985 № 59/11, persons in which relation on the specified bases criminal cases are ceased, are considered with - managing crimes ». Then the committee of the constitutional supervision of the USSR recognised positions criminally-protsessualvnogo zakonodatelvstva, providing possibilities priznavati the person guilty of committing a crime without a legal investigation in the court, mismatching the Constitution of the Russian Federation. However, not looking at it, the assignee of Committee - the Constitutional Court of the Russian Federation has specified, that at the decision of a question on constitutionality of item 6 UPK RSFSR (the Termination of criminal case owing to conditions change) it follows rassmatrivatv in system communication as with positions ch. 1 items 49, ch. 1 items 118, ch.ch. 1 and 2 items 46 Constitutions of the Russian Federation, and with positions of norms criminally-protsessualvnogo the law, in particular, about justice realisation on criminal cases tolvko court. «Proceeding from it... The decision on the termination of criminal case does not substitute for itself a sentence of court and, inspectors but, is not the certificate by which guilt convicted of that sense as it is provided by article 49 of the Constitution [236] is established

The Russian Federation (our italics. - JU.K.) ». However about what such it is guilty

sti convicted it is possible to lead rechv in this case, moreover in other смвісле, than it is provided statnej 49 Constitutions of the Russian Federation. Neither the doctrine, nor the theory do not give the answer to this question. Moreover, if predpolozhitv, that exists two guilts it is possible govoritv and about two presumptions of innocence, i.e. one guilts are the guilts, established by the inspector, the investigator, and another - court. It directly contradicts not tolvko to the Constitution of the Russian Federation, but also obshchepri - znannvsh to norms and international law principles. Besides, tolvko the court is competent priznati the person vinovnvsh in committing a crime (instead of the person itself) and naznachiti to it punishment, having established it in the become effective sentence (item 1 ch. 1 items 29 UPK the Russian Federation, ч.1 item 49 of the Constitution of the Russian Federation). And the given constitutional position defines value of a sentence as major certificate

Justice and обязвівает судві neukosnitelvno sobljudatv requirements zakonoda -

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telvstva, предъявлявмвіе to a sentence, instead of any other certificate, let us assume, decisions about the criminal case termination.

Meanwhile, the project of the decision of Plenum of the Supreme Court of the Russian Federation «About practice of application by vessels zakonodatelvstva, regulating clearing of the criminal liability» [237 [238] [239] has undertaken such попвітку, however and «remained in the power» the above-stated formulation of the Constitutional court of the Russian Federation, having specified, that poskolvku the criminal case termination on nereabilitirujushchim to the bases is not the certificate, kotorvsh is established vinovnostv convicted of that sense as it is provided statvej 49 Constitutions of the Russian Federation, and, accordingly, attracts others, than a sentence, legal consequences presence or absence of such bases should proverjatvsja on each criminal case concerning each convicted and each crime charged to it.

Primenitelvno to the given problem, it appears, that actually vinovnostv in criminal trial one, and here consequences of its establishment having discriminated subjects of criminal trial разнвіе. For example, vinovnostv (и.2 ch. 1 item 73 UPK the Russian Federation) can ввіступатв an element of the formulation of charge as in the decision about attraction of the person as convicted, and in a court sentence.

However the question about protses a sou алвнвіх forms at decision-making on dannvsh to the bases so okonchatelvno also is not solved, in spite of the fact that excites minds uche - HBix for a long time already [240].

Shy попвітку in this direction in 1996 has undertaken Verhovnvsh court of the Russian Federation, having given a following explanation: «If the court during judicial razbiratelv - stva comes to ввіводу about necessity of clearing of the defendant from punishment on predusmotrennvsh in and. 3 ch. 1 items 24 and and. 3 ch. 1 items 27 UPK the Russian Federation to the bases (in view of the expiry of the term of statute of limitation in criminal cases or owing to the amnesty certificate if it eliminates punishment application for perfect acts), court, enacting Concerning the defendant обвинителиHBIй the sentence, should in it is the satelvno-reasoning obosnovatv the made decision. In the sentence substantive provision, recognising the defendant vinovnvsh in committing a crime and having appointed punishment on corresponding statve the criminal law, court указвівает about clearing condemned from punishment» [241].

It is obvious, that in the resulted explanation means tolvko one of three kinds обвинителвнвіх the sentences provided in item 302 UPK the Russian Federation, namely: a verdict of guilty with awarding punishment and clearing of its serving (ch.b item 302 UPK the Russian Federation). Certainly, given model is organically entered in logic of the mechanism of criminally-legal regulation described by us, however completely a problem does not remove, and confuses more likely if to consider, that «if to the defendant is accused under several articles of the criminal law and the court during proceeding will come to conclusion about necessity on some of them to cease business, motivirovannoe the decision on it is stated not in a sentence, and in the definition (decision) of the court which have been taken out simultaneously with a sentence» [242]. In practice there are also more difficult cases when one of accomplices essentially objects to phase-out on business owing to the certificate about amnesty, and further concerning it the court enacts the verdict of "not guilty", and concerning the others - manufacture stops on nereabilitirujushchemu to the basis. There is enough vspom - nitv so назвіваемое business "gekachepistov" when concerning the deputy minister оборонві the USSR V.I.Varennikov objecting to application of the certificate about amnesty, бвіл vvshesen the verdict of "not guilty", and all other participants GKCHP have been amnestied [243].

In one of operating (and invalid) explanations of the higher degree of jurisdiction the question of conformity of the material legal institution of clearing of the criminal liability to a principle of the presumption of innocence, expressed in system of written pleadings, and is not decided, that, probably, speaks not only sharp, not stopping polemic among scientists, but also some uncertainty of the most criminal procedure law [244].

In the criminal trial doctrine other element of the is standard-logic formula of the mechanism of criminally-legal regulation is offered theoretically and terminologically "protsessualizirovat" material criminal law [245], actually "having substituted" in the named institute, naming it «clearing of criminal prosecution». The given decision vesvma logically also does not demand about - ширнвіх changes in the criminal law, however does not allow up to the end «vycher - titv» system protses a sou alv HBix certificates, принимаемвіх pravoprimenitelem on nereabilitirujushchim to the bases.

So, it agree, item 84 of the Criminal code of the Russian Federation the certificate about the amnesties of the person which have committed crimes, persons, осужденнвіе for fulfilment of crimes can бвітв освобожденві from the criminal liability, and, can бвітв освобожденві from punishment. It is obvious, that last from two cases of application of amnesty is the variant of the decision of a sentence earlier described by us with awarding punishment and clearing of it отбвівания [246].

At the same time, mentioned models according to which «if to the defendant it is accused in fulfilment of several crimes and the court during proceeding will come to conclusion about necessity on some of them to cease criminal prosecution, motivirovannoe the decision on it is stated not in a sentence, and in the decision (definition) of the court which have been taken out simultaneously with a sentence» [247] - demands the explanatory as variants are possible.

For example, if during session of the court the State Duma of Federal assembly of the Russian Federation publishes the certificate about amnesty and the defendant agrees the termination of criminal case owing to the certificate about amnesty on one of three structures the court takes out the decision about dismissal of action on the given basis simultaneously with the sentence decision on two other structures. If the defendant objects to amnesty application court finally enacts a sentence.

The similar approach is possible at reconciliation of the defendant as item 25 UPK the Russian Federation, variants however are possible.

So, in case of committing a crime neskolvkimi persons from the criminal liability in connection with reconciliation with the sustained those from them can бвітв освобожденві lishv, которвіе primirilisv with sustained and have smoothed down the caused

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To it harm.

If in rezulvtate crimes has suffered neskolvko victims absence of reconciliation at least with one of them follows rassmatrivatv as being - telvstvo, interfering clearing of the criminal liability according to statnej 76 UK the Russian Federation.

At cumulative offences reconciliation with sustained and harm smoothing down they can vlechv clearing of the criminal liability In COMMUNICATION C by reconciliation with sustained tolvko for a crime, in connection with kotorvsh realisation i.e. court vvshosit the decision about the criminal case termination in this part behind reconciliation of the parties and a sentence on remained («not consiliated - sja») parts of act or to the remained acts.

However, as to the expiration of limitation periods then the situation not so is unequivocal as it seems at first sight. Already otmechalosv [248 [249], that ch. 8 items 302 UPK the Russian Federation actually are entered by the new basis of clearing of punishment - the expiration of limitation periods, and, it is necessary skazati, in a science the given point of view is divided [250 [251]. But there is a question in subspecies of a kind such protses a sou alv but go the certificate, as a sentence.

Practice of the Constitutional court of the Russian Federation tolvko confirms correctness of the resulted point of view, but the specified question does not answer. In bolvshinstve cases courts "are reassured" and at the expiration of limitation periods of criminal prosecution enact a verdict of guilty with awarding punishment and clearing of its serving. It is asked, what sense in it, after all actually act of the person has lost the social danger, behind an exception, the truth, the acts punishable by a death penalty or lifelong imprisonment, and also some acts against the world and safety of mankind (item 353, 356-358 UK the Russian Federation). What sense in punishability of the given act? The answer - any.

If criminal prosecution limitation periods have expired, that is it does not proceed, it cannot "flow" in the fourth element of the formula of the mechanism of criminally-legal regulation - in punishment, and the person who has made such act - nenakazuemo. C other party, and perfect act on sense of item 78 UK the Russian Federation behind prescription is considered nonpunishable. In this case it is necessary and to establish enough, that the defendant has made this act, its guilt, the fact of its condemnation, that is to enact a sentence without appointment of the order - 252

nija

Not casually, in item 330 UPK РСФСР253 from May, 25th 1922г., as well as in item 326 UPK RSFSR [252] from February, 15th 1923г., it has been specified, that the court pronounces a sentence about osvo - [253 [254]

bozhdenii the defendant recognised guilty, from punishment on amnesty or prescription. And both UPK did not know such kind of a sentence as a sentence with awarding punishment and clearing of it отбвівания. Actually бвіло three kinds of sentences: justificatory, accusatory with awarding punishment and a verdict of guilty with clearing of punishment (i.e. without awarding punishment).

By the way speaking, and UPK RSFSR I960 of year also did not know such kind of a sentence, however concerning a sentence without awarding punishment it has been entered new, to the village, not the known basis - «if by the legal investigation moment in court act has lost the social danger or the person, its made, has ceased to be socially dangerous» (item 309 UPK RSFSR).

As to operating UPK the Russian Federation at the golovno-remedial law, naming such kind of a verdict of guilty (without awarding punishment), does not name the basis of its decision, that at least is strange.

At the same time, the is standard-logic formula of the mechanism ugolovnopravovogo regulations suggests to solve this question when at attraction of the person to the criminal liability perfect criminal action cannot be (or should not be) is punishable, for example:

S at the expiration of limitation periods of criminal prosecution,

S in need of application of forced measures of educational influence instead of awarding punishment.

It is necessary to notice also, that in the legal literature there is an assembly of opinions concerning the bases the decision of a verdict of guilty without awarding punishment, however the above-stated two bases is practically held back.

So, prof. A.D.proshljakov, investigating the given problem at level of a collision material and the law of procedures - item 309 UPK RSFSR and item 50 UK РСФСР254 [255], and agreeing with prof. P.A.Lupinskoj that «distinctions between remedial consequences of application ч.1 and ch. 2 items 50 UK RSFSR in the criminal procedure law are expressed insufficiently consistently» [256], comes to conclusion, that the given collision should be resolved in favour of the material criminal law, i.e. in favour of UK the Russian Federation where such basis basically is absent [257 [258]. Later 14 years a textbook group of authors on Criminal trial under the guidance of prof. A.D.proshljakova repeat the same formulation, establishing, that UPK the Russian Federation 2001г. «Does not contain any instructions concerning conditions of removal of such decision, therefore it is expedient to exclude a mention of this kind from the criminal procedure law accusatory prigo -

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The thief ».

It is necessary to tell, many copies are broken in this occasion. As a result of efforts of a part of a group of authors in the mentioned textbook there was the small footnote [259] which essence is reduced approximately to the following - a pier, we know the bases of the decision of a sentence without awarding punishment, however they are not present.

Situation original enough and for its clearing it is reversible to background of the question which dynamics has been partially in detail enough investigated"by A.D.proshljakovym:

«On December, 25th, 1958 Bases of the criminal legislation of Union CCP and union republics [260] and Bases of the criminal trial of Union CCP and union republics [261] have been accepted. According to ch. 1 item 43 of Bases of the criminal legislation the person who has made act, containing crime signs, can бвітв is released from the criminal liability if it will be recognised, that by time of investigation or a legal investigation in court, owing to conditions change, the act made by it has lost character socially dangerous or this face has ceased бвітв socially opasnvsh. CHastv 2 items 43 of the same bases provided, that the person who has committed a crime, can бвітв on a court sentence this person is released from punishment if it will be recognised, that owing to the subsequent irreproachable conduct and the fair relation to work

By legal investigation time in court not can бвітв it is considered socially opas - 262

HBIM »

In dalvnejshem parts 1 and 2 items 43 of Bases criminal zakonodatelvstva were literally in with proiz веденні accordingly in parts 1 and 2 items 50 of the Criminal code of RSFSR [262 [263].

Despite it, ch. 4 items 43 of Bases of the criminal trial of 1958, probably, summing up, generalising both ввішеприведеннвіх a case, established a following rule: «the Court enacts a verdict of guilty without awarding punishment if by the legal investigation moment in court act has lost the social danger or the person, its made, has ceased to be socially dangerous», actually reproducing an existing rule about conditions change, that, by the way speaking, later and has been partially made in ch. Z item 48 of Bases of the criminal legislation of Union CCP and republics 1991г. [264], and completely - in item 309 UPK

RSFSR. And the mess has begun with that moment, both on pages of the legal press, and in judiciary practice explanations.

So, Plenum of the Supreme Court of the USSR in the decision from June, 30th, 1969 «About the adjudication» specified, that «in cases when the defendant is released from punishment owing to item 43 of Bases of the criminal legislation, court, enacting a verdict of guilty, should motivate the conclusion, and in the sentence substantive provision, recognising the defendant guilty of committing a crime and not appointing the concrete punitive measure, - to specify, that according to the law it is released from punishment» [265].

Later 7 years Plenum of the Supreme Court of the Russian Federation has explained on September, 8th, 1976 more accurately, that «if the court will recognise, that the person who has committed a crime, owing to its subsequent irreproachable conduct and the fair relation to work to legal investigation time in court not can be is considered socially dangerous and on this basis comes under to clearing of punishment, the verdict of guilty without awarding punishment is enacted. In this case the court, recognising the defendant guilty, in the sentence substantive provision should specify in its clearing of punishment according to ch. 2 items 50 UK RSFSR» [266].

Further, Plenum of the Supreme Court of the Russian Federation in the decision from April, 29th, 1996 «About the adjudication», recognises as become invalid the decision of Plenum of the Supreme Court of RSFSR from the September, 8th, 1976, doing not come under to application the decision of Plenum of the Supreme Court of the USSR from June, 30th, 1969 and will explain, that «in force ch. 2 items 309 UPK RSFSR court, recognising at the sentence decision, that by the legal investigation moment in session of the court act have lost public dangers or the person, its made, has ceased бвітв socially opasnvsh, enacts a verdict of guilty without awarding punishment. In this case in a descriptive part of a sentence the court is obliged to motivate the made decision with reduction of the concrete circumstances confirming conclusions vessels, and in rezoljutivnoj - to recognise the defendant guilty and to specify, that according to the law punishment to it is not appointed» [267].

After five years after coming into force UPK the Russian Federation 2001 the Supreme Court of the Russian Federation refuses this position, having excluded the given paragraph the decision of Plenum of the Supreme Court of the Russian Federation from February 2007г. № 7, however the same decision creates new edition and. 17 decisions of Plenum of the Supreme Court of the Russian Federation from February, 14th, 2000 №7 «About judiciary practice on affairs about crimes of minors» [268] in which the following was specified literally: «According to article 432 UPK the Russian Federation the court has the right, having enacted a verdict of guilty to release the minor from punishment and on the basis of article 92 UK the Russian Federation to apply the forced measures of educational influence provided by a part of 2 articles 90 UK the Russian Federation, or to direct it in special uchebno - educational establishment of the closed type of controls formation.

Thus it is necessary to consider, that in specified special uchebno - educational establishment the minors condemned for fulfilment of crimes only of average weight or heavy, except for specified regarding 5 article 92 UK the Russian Federation when they require special conditions of education, training go and demand the special pedagogical approach. Such decision is accepted by court in a replacement procedure of the punishment which appointments in this case it is not required (point 3 of a part of 5 articles 302 UPK the Russian Federation) », i.e. the verdict of guilty without awarding punishment is enacted.

In four years the same position of the Supreme Court has been reproduced in item 35 of the decision of Plenum of the Supreme Court of the Russian Federation from February, 1st, 2011 № 1 (red. From February, 9th 2012г.) «About judiciary practice of application of the legislation regulating features of the criminal liability and punishment of minors» 269.

It is not less interesting in this connection practice vvgaolnenija Supreme Court explanations on the given question.

So, in Sverdlovsk the provincial court the motivation of appointment of punishments in protses a sou алвнвіх the documents enacted by court in the relation несовершеннолетних270 has been developed. Here one of fragments of explanatories to motivation obvinitelvnogo a sentence without awarding punishment:

«Positions ch. 2 items 92 of the Criminal code of the Russian Federation and ch. 2 items 432 of the Code of Criminal Procedure of the Russian Federation separately regulate the bases and an order of clearing of minors from punishment with application of such forced measure of educational influence as a premise in special teaching and educational establishment of the closed type before achievement of age of eighteen years by it, but no more than for three years. The basis for acceptance by court of such decision is the recognition of the minor guilty of fulfilment of crimes of average weight or heavy, not listed in ch. 5 items 92 of the Criminal code of the Russian Federation, with awarding punishment in the form of imprisonment, and also an establishment of the circumstances, testifying that the minor for the correction requires special conditions of education, training and demand the special pedagogical approach. It is represented, that the most effective is the premise of minors in special teaching and educational establishments of the closed type (in the presence of specified in the law and mentioned above obsto - [269 [270]

jatelstv) when behind behaviour of minors is absent ought kontrolv with сторонні their parents or persons, their replacing or when the teenager vvnpel from under the control указаннвіх persons and evades from study, uses спиртнвіе drinks and narcotic or toxic substances and is on the tramp. In session of the court, besides перечисленнвіх ввіше obstojatelv - stv, come under ввіяснению and to research даннвіе about a condition zdorovvja the minor, poskolvku in специалвнвіе uchebno-vospitatelvnv_e establishments закрвітого type cannot бвітв помещенві the minors having diseases, interfering their maintenance and training in указаннвіх establishments. perechenv such diseases it is approved by decision Pravitelvstva of Russia - skoj Federations from July, 11th, 2002 for №518. For possibility definition

Premises of minors in специалвнвіе uchebno-vospitatelvnv_e establishments закрвітого type should бвітв it is spent their medical, including psychiatric, osvidetelvstvovanie.

Thus follows pomnitv, that positions ch. 2 items 92 of the Criminal code of the Russian Federation provide vozmozhnostv applications such prinu - ditelvnoj мерві voe feeders but go influences as a premise in spetsialvnoe uchebno-vospitatelvnoe establishment закрвітого type to the minor condemned for committing a crime of average weight to punishment in the form of deprivation свободві and released from this punishment, that taking into account positions ch. 6 items 88 of the Criminal code of the Russian Federation, providing an interdiction of awarding punishment in the form of deprivation свободві to minors, вперввіе made aged till 16 years of a crime of average weight, practically do nevozmozhnvsh application of positions ch. 2 items 92 of the Criminal code of the Russian Federation concerning the minors who have committed crimes of the mentioned category of weight. However, pamjatuja that at [271] decision of the specified question first of all должнві учитвіватвся интересві the minor which premise in spetsialvnoe uchebno-vospitatelvnoe the establishment закрвітого type instead of application to it of punishment under criminal law measures can blagoprijatnvsh in the image otrazitvsja on its position, poskolvku the teenager is released from punishment and admits the person who does not have previous convictions, has possibilities poluchitv formation and to get a trade, thus decreases probabilities of fulfilment by it of a repeated offence as the teenager has possibilities бвітв изолированнвім from a negative inhabitancy, the court in the mentioned case can primenitv positions ch. 2 items 92 of the Criminal code of the Russian Federation with ссвілкой on positions of item 17 of the decision of Plenum of the Supreme Court of the Russian Federation from February, 14th 2000 №7 with changes from February, 2007 « About judiciary practice on affairs about crimes of minors », explaining, that at the decision accusers but go a sentence the decision on clearing of the minor from punishment as positions of item 92 of the Criminal code of the Russian Federation with application at - nuditelvnoj мерві educational influence in the form of a premise in special teaching and educational establishment of the closed type is accepted in a replacement procedure of the punishment, which appointments in this case it is not required (item 3 ч.5 articles 302 Ugolo vno-remedially go the code of the Russian Federation)».

Apparently, the provincial court actually enters the own basis of the decision of a verdict of guilty without awarding punishment, reminding that to the minor about 16 years on a certain category of crimes are elderly punishment in the form of imprisonment cannot be appointed.

However it at all does not mean, that in this case, first, the minor cannot appoint other kind of punishment for perfect criminal action, secondly, it also does not mean, that the decision of Plenum of the Supreme Court of the Russian Federation necessarily for execution by courts below, judges are not independent and do not submit to the Constitution and only to the law (item 118 of the Constitution of the Russian Federation), and court activity is «under a captivity me», instead of subordinate legislation. And if it was so, for certain change of a position of Plenum

The Supreme Court would be the basis for revision in the exercise of supervisory powers verdicts of guilty without awarding punishment, for example, enacted on the basis of loss of the social danger of the person who have made act, or the act.

At the same time, Supreme Court Plenum, court of the subject of the Russian Federation cannot establish the basis of clearing of the criminal liability or punishment according to which in at the golovno-remedial law the bases of removal of those or other written pleadings are established. Using well-known categories of a wartime, on an extent already at least five years (if to consider from the moment of acceptance of the decision of Plenum of the Supreme Court of the Russian Federation February 2007г.) the Supreme Court explanation "has grasped" and successfully "keeps" a part of the mechanism of criminally-legal regulation not only in area pravoprimenenija, but also in minds of scientific-protses sous is scarlet isto century

If to address to textbooks on criminal trial a number of scientists take of a position of concealing of this question [272], others - retell ч.2 item 309 UPK RSFSR [273] and corresponding positions of the cancelled decisions of Plenums of the Supreme Courts of the Russian Federation and the USSR, the third - on the contrary, come to courageous enough conclusions without the necessary argument.

So, P.A.Lupinskaja is limited to one case when the convicted does not agree with the termination of its business on amnesty on pre-judicial manufacture and then business goes to court, and the court as a result of proceeding recognises as its guilty, but punishment, in view of amnesty, does not appoint [274].

The point of view of prof. A.V.Smirnova which discriminates the certificate about the amnesty, releasing the defendant from punishment application is not less interesting in this respect (it is literally reproduced and. 1 ch. 6 items 302 UPK the Russian Federation), and the certificate about the amnesty, releasing from punishment. If the first variant, on-smirnovu, ввіступает the decision basis obvinitelvnogo a sentence with awarding punishment and clearing of it отбвівания the second - obvinitelvnogo a sentence without awarding punishment, poskolvku in the latter case means the certificate about amnesty to which clearing of punishment of persons of a corresponding category which it it is not defined by a kind or the size of concrete punishment appointed to the defendant (for example, women, minor etc.) is offered.

Besides, A.V.Smirnov as the basis of the decision of a sentence without awarding punishment ввіделяет also the expiration of limitation periods of criminal prosecution referring to ch. 8 items 302 UPK the Russian Federation; clearing of punishment in connection with conditions change (item 80.1 UK the Russian Federation), also that, the most interesting, application принудителвнвіх measures vospitatelvnogo influences to the minor with a direction in spetsialvnoe uchebno-in about feeders but e establishment закрвітого type of controls formation (ch. 1,2 items 432 UPK the Russian Federation).

If перввіе two bases also it is possible vstretitv and in others the textbook

276 277

Grants, and also in comments at golo vno-protses a sou alvnogo the law, tre - [275 [276] [277]

te - the big rarity, nesmotrja as it was already marked, on an operating explanation of Plenum of the Supreme Court of the Russian Federation on affairs of minors.

So, the collective of chair of criminal trial and criminalistics of faculty of law of the St.-Petersburg state university names three cases of removal of a verdict of guilty without awarding punishment:

1. Application of forced measures of educational influence to the minor with a direction in special teaching and educational establishment of the closed type of controls formation (ch. 1,2 items 432 UPK

THE RUSSIAN FEDERATION);

2. Clearing of punishment in connection with illness (item 81 UK the Russian Federation); and

3. Death of convicted (defendant) when its relatives insist on criminal proceeding which is necessary, in their opinion, for rehabilitation died (if in this case the bases for the decision of the verdict of "not guilty" are absent).

It is remarkable, that, according to the given collective of authors, the verdict of guilty with awarding punishment and clearing of its serving is enacted (besides directly specified in ch. 6 items 302 UPK the Russian Federation of cases) as well at the expiration of limitation periods criminal преследования279 whereas, if directly to address to the law text - ч.8 item 302 UPK the Russian Federation order to enact a verdict of guilty with clearing of punishment.

At the same time, the same collective of authors, drawing an analogy with UPK RSFSR, actually equates a verdict of guilty with clearing of the order - [278 [279] nija according to treatment ch. 4 items 5 UPK RSFSR with a verdict of guilty without awarding punishment on operating UPK the Russian Federation, resulting the historical inquiry referring to the textbook of the same authors [280 [281] [282] [283], that on UPK RSFSR the verdict of guilty with clearing condemned from punishment was taken out in cases of the expiration of limitation periods, owing to the certificate about amnesty if it eliminated punishment application for perfect act, and also in view of the pardon of separate persons. Moreover, one of reviewers of this textbook - prof. A.V.Smirnov, analyzing operating UPK the Russian Federation, in general approves, that the verdict of guilty with clearing condemned from punishment is the same, that convict - telnyj a sentence without awarding punishment (probably, by analogy with UPK RSFSR 1922 and 1923).

«In general, mess» - as K.I.Chukovsky, not only in heads of scientists and judges, but also the dear legislator would tell. If the become invalid criminal law in item 56 UK only casually mentioned RSFSR amnesty and the pardon the operating Criminal code of the Russian Federation has allocated them in the separate chapter (gl. 13. Amnesty, the Pardon. A previous conviction), having carried them to the bases of clearing of the criminal liability and from punishment; if UPK RSFSR in item 5 as one of the circumstances excluding criminal proceeding, provided both the amnesty certificate, and the pardon certificate operating UPK the Russian Federation - only the certificate about amnesty (item Z ч.2 item 27 UPK the Russian Federations), for some reason forgetting about the pardon certificate owing to which the decision about the criminal case termination in which, in the ocheredv is accepted, can бвітв установленві vnovv открвівшиеся being - telvstva (ч.5 item 413 UPK the Russian Federation) [284]. Besides, if operating уголовнвій the law provides the bases of application of amnesty and the pardon the law criminal procedure - at all does not regulate procedure of their application as, for example, according to ч.4 item 175 Wick the Russian Federation the order of application of amnesty is defined by the body which has published the certificate about amnesty.

So, the State Duma of Federal assembly of the Russian Federation each time at the amnesty announcement accepts the additional decision about an order of its application [285], that, as a matter of fact, substitutes at golo the vno-remedial law and lips - navlivaet a special order of the criminal trial.

Concerning the pardon a situation even more "probelnaja". So, in one of decrees of the President of the Russian Federation about the pardon individually before ate enno go persons it is not explained, and whether it can be appealed judicially [286 [287] [288]; neither in the Constitution of the Russian Federation, nor in one other regulatory legal act it is not specified, and whether the person fulfilling duties of the President of the Russian Federation can, to pardon one of the close relatives or it it is forbidden; whether owe the person in which relation the certificate about the pardon is accepted, to recognise the fault in perfect act, or there is enough of that it is already recognised by guilty on a court sentence; and whether its close relatives, or, for example, its defender - the lawyer can instead of condemned to address with the suit for pardon to the President of the Russian Federation. The law was only limited to instructions that condemned have the right to address to the President of the Russian Federation with the suit for pardon which it submits through administration of establishment or the body executing punishment (item 176 Wick the Russian Federation). The exception constitutes only the pardon condemned to a death penalty which is possible and without the consent condemned (ch. 3 items 184 Wick the Russian Federation). Besides, till April, 18th, 2010 ch. 5 items 113 Wick excitation of the suit for pardon correctional facility administration were provided by the Russian Federation as one of the measures of the encouragement applied to condemned to imprisonment [289 [290].

Thus, while these questions will not be solved at legislative level, they will periodically arise.

It is enough to give an example with the condemned M.B.Hodorkovskim in which relation in a press the whole discussion has inflamed - when the position was widely broadcast - that the President of the Russian Federation has pardoned it, it should pokajatsja and

290

To recognise the fault in perfect acts

At the same time, in legal practice it is a lot of cases when for the condemned asked both close relatives, and its neighbours, and at all foreign people and the organisations, a rural descent, for example [291]. And really they should recognise fault condemned in the act made by it? It is thought, that is not present, as the Constitution of the Russian Federation, the current legislation do not connect realisation of the powers by the President of the Russian Federation under the pardon with any formal conditions that gives it possibility in each concrete case most to define procedure of the pardon [292]. Even at "conclusion" so-called «transactions about confession» the special order of proceeding is applied only in the presence of the consent convicted with the charge shown to it (ч.1 the item 314 UPK the Russian Federation) and no more, or at rendering of assistance to a consequence in disclosing and crime investigation, exposure and criminal prosecution of other accomplices of a crime, search of the property extracted as a result of a crime (ч.2 item 317.1 UPK the Russian Federation). Differently, in itself confession convicted in the criminal trial has no jural significance, and can be considered only as circumstance commuting punishment (ч.2 item 61 UK the Russian Federation) or to be one of signs of active repentance, and that, as a rule, invested with the certain remedial form (as, for example, an appearance with guilty at criminal case excitation). And the recognition convicted the fault in committing a crime can be necessary in a charge basis only at acknowledgement of its guilt by set of proofs available on criminal case (ch. 2 items 77 UPK the Russian Federation).

The position of default concerning cases of removal by vessels of decisions on cancellation or change of sentences on again opened or to new facts or in the exercise of supervisory powers and the modern cassation [293] concerning condemned remains also, to which the President of the Russian Federation had been applied earlier the pardon.

Earlier till May, 24th, 1991, i.e. till the moment of establishment of a post of the President of RSFSR and transition according to article 121.5 of the Constitution of the Russian Federation of [294] powers of pardon of citizens, osuzhdenijah vessels of RSFSR, from Presidium of the Supreme body of RSFSR to the President, corresponding courts informed on the taken place decisions Presidium of the Supreme body of RSFSR and a question on cancellation or change before the accepted decree about pardon application to the condemned was considered by Presidium of the Supreme body of RSFSR lishv under a condition if this person continued otbyvatv punishment [295]. poskolvku after three months the given order has been excellent the decision of Presidium of the Supreme body of the Russian Federation from September, 7th, 1992 № 3455-1 [296] [297], and new, instead of former, to these it is not accepted, this, is far not an idle question in pravoprimeniteli ache to practice remains otkry -

297

TBIM.

For the sake of justice we will notice, that in 90th years in Russia nabljudalisv attempts delegirovatv realisation of powers under the pardon to heads of subjects of the Russian Federation.

So, the Contract between the Russian Federation and Republic Bashkortostan from August, 3rd, 1994 «About differentiation of terms of reference and mutual delegation of powers between public authorities of the Russian Federation and Republic Bashkortostan public authorities» [298] contained and. 11 ч.1 item 3, according to which pardon of persons, осужденнвіх Republic Bashkortostan vessels, nahodilosv under the authority of Republic Bashkortostan. Besides, in the Republic Bashkortostan Constitution contained and. 19 items 95 according to which the President «carries out powers of pardon of citizens, осужденнвіх Republic Bashkortostan vessels» [299].

Similar position soderzhalosv in and. 5 ch. 2 items of II Contract of the Russian Federation and Republic Tatarstan from February, 15th, 1994 about differentiation of terms of reference and mutual delegation of powers between public authorities of the Russian Federation and public authorities of Republic Tatarstan [300 [301].

In the beginning двухтвісячнвіх даннвіе positions actually бвіли annulirova - HBi when the Constitutional Court of the Russian Federation in the decision from June, 7th, 2000 №10 - P on business about constitutionality check отделвнвіх positions of the Constitution of Republic Altai and Federalvnogo the law «About the general principles of the organisation the law дателвнвіх (представителвнвіх) and исполнителвнвіх public authorities of subjects of the Russian Federation» has specified, that «... Contracts, agreements cannot peredavatisja, iskljuchatvsja or otherwise are redistributed established by the Constitution of the Russian Federation terms of reference of the Russian Federation and corresponding powers of federal bodies execute - telnoj the authorities», and the Supreme Court of the Russian Federation recognised as contradicting the federal legislation, invalid and doing not come under to application the Law of Republic Bashkortostan from November, 11th, 1996 № 56-3 «About the pardon of the persons condemned by vessels of Republic Bashkortostan», investing the President of Bashkortostan with powers under the pardon [302]. And in the latter case the Supreme Court of the Russian Federation has made the decision later 4 days after the Law of Republic Bashkortostan from April, 13th, 2001 212-z the challenged Law бвіл is recognised by become invalid, that, certainly, указвівает on iskljuchitelvnuju importance of the permission of the arisen situation [303].

On December, 3rd, 2002 corresponding positions бвіли исключенві and from the Constitution of Bashkortostan [304].

Besides, in 90th years vstrechalisv vesvma exotic cases of actually correspondence pardon the President of the Russian Federation neindividualno a certain circle of persons, namely: participants незаконнвіх вооруженнвіх formations in the Chechen Republic, dobrovolvno ceased противоправнвіе actions, and also the citizens who are living in territory of the Chechen Republic and not being participants незаконнвіх вооруженнвіх of formations, but illegally owning the weapon. And the decree of the President of the Russian Federation vvodilasv special, not provided ugolo vno-protses a sou alv HBi m the law procedure of consideration of statements of persons, dobrovolvno laid down arms and ceased противоправнвіе actions, about nevoz - buzhdenii concerning them уголовнвіх affairs and acceptance together with pravoohrani - тельHBiми bodies of the Chechen Republic of the corresponding remedial decision [305].

For today the concept and a pardon essence is formulated in a legal position of the Constitutional court of the Russian Federation [306] according to which the pardon is defined as the certificate of mercy which owing to the most nature cannot lead to the consequences heavier for condemned, than fixed in criminal law, providing responsibility for the act incriminated to it, and the vessels appointed a sentence on concrete business. In this connection, replacement carried out as the pardon, let us assume, a death penalty another, less heavy in comparison with it, the punishment provided by operating criminal law, for example, by lifelong imprisonment, it should be regarded as improvement of position condemned. To a word speaking, in civil procedure the pardon, certainly, will be regarded as arisen after acceptance of the judicial decision and having essential value for correct adjudication the circumstance attracting revival.

In criminal trial, the decree about the pardon attracts improvement of position condemned that is why, the court reviewing criminal case concerning pardoned condemned as modern cassation, supervision or in view of the new or again opened circumstances, cannot worsen position condemned even if it has made heavier on degree and character of the social danger act, than that for which fulfilment it has been pardoned, and there are all remedial conditions giving the bases for turn to worst (the item 401.б [307], ch. 2 items 412.9 UPK the Russian Federation).

C other party, the decree about the pardon of the condemned does not interfere with improvement of position of the condemned person up to removal concerning it the verdict of "not guilty". In this case the decree of the President of the Russian Federation has pre-judicial, prekljuzivnogo no value for the given criminal case, and the fact of its existence, including neotmeny, cannot affect innocence in any way before the pardoned condemned. And cancellation of a verdict of guilty does not demand decree cancellation about the pardon condemned in which relation such sentence has been taken out as the decree about the pardon is accepted in connection with condemnation of the person - cancellation of condemnation does not demand decree cancellation as last is secondary, made from a sentence and has further no any jural significance for business.

For example, the Decree from April, 21st, 2012 №489 President of the Russian Federation D.A.Medvedev, being guided by humanity principles, has enacted to pardon S.E.Mohnatkina, 1954 of the birth condemned on June, 9th, 2010 by the Tver regional court of of Moscow, having released it from the further enduring the punishment in the form of imprisonment [308].

The truth there are also exceptions of this rule.

So, the President of the Russian Federation B.N.Yeltsin, proceeding from principles of humanity and taking into consideration level of the Russian-French relations, has pardoned the citizen of France Jean-Paul Gishera condemned by the Russian court for kontraban -

du, not having specified in the decree not tolvko on конкретнвіи a court sentence, but also that it means "pomilovatv": Gisher it is released from dalvnejshego отбвівания punishments or the punishment appointed to it is reduced or replaced with softer kind of punishment, not svjazannvsh with isolation from a society, or from it acts in film previous convictions? However the resulted example does not influence on pravilvnostv сделаннвіх BBiBO about one century

More difficult business with a training for a new profession of act towards softening, poskolvku is, as a rule, the sentence changes, instead of is cancelled. Formalvno the fact of condemnation of the person the same sentence of court remains, qualification of actions condemned which, for example, is possible on another statve the criminal law on which to the defendant not бвіло it it is accused if actions of the defendant, квалифицируемвіе on new statve the law, vmenjalisv to it in fault and not бвіли исключенві from the bill of particulars changes tolvko, do not contain signs more grave crime and essentially do not differ under actual facts from charge on which has put it was accepted to court manufacture, and change of charge does not worsen position of the defendant and does not break its right of defence [309 [310]. If after change of this verdict of guilty it is impossible or execution of the decree of the President of the Russian Federation about the pardon is inconvenient and the person continues to serve time, an order of execution of the certificate of the pardon in each specific case

(See ch.І Item 85 UK the Russian Federation) the body, its accepted, i.e. the President of the Russian Federation, it appears, should explain.

At the same time, insufficient uregulirovannost procedures of the pardon at times leads to absolutely unexpected results.

So, on April, 20th, 1978 «Боинг-747» airlines Korean Air Lines (КAL), carrying out flight №902 of Paris to Seoul with intermediate planting in Anchorage (the State of Alaska, the USA), has crossed La Manche, safely passed the Great Britain, but on a beam of Iceland has descended from the airway, has flown by over Spitsbergen and has gone towards Kola peninsula.

Then command of 5th division of air defence in poduzheme has organised "zachistku" air space under the plan "Carpet" when air vessels without dependence from type and a departmental accessory are obliged to make urgent planting in the nearest airdrome. On purpose interception the link of fighters Су-15ТМ which, having risen on a parallel course, have shaken wings has risen, have given a signal onboard fires and, crossing a course of the infringer, have smoothly turned on aside, that on aviation "esperanto" meant the order to follow an interception aircraft. But the Korean pilot «has included the fool»: pretending, that does not understand signals, it has turned towards Finland, having tried to get away on adjacent territory [311].

Splinters of the rocket which have been let out from one of accompanying Су-15, from ON passengers (Koreans, Japanese, Frenchmen, Germans) has killed a two, 13 have been wounded, and escaped at attack have received barotravmy, as a result «Боинг-747» has successfully landed on lake Korpijarvi ice, near to the Karelian settlement Louhi, that approximately in 2000 km from Moscow.

During plane survey it was found out, that its right wing has been damaged at blow about trees, the nose is not damaged, the console of the left wing is torn off by a rocket, the turbine on one of engines is jammed, and in a fuselage the hole from splinters was seen. All passengers including children, the Soviet officers and soldiers on hands have transferred to helicopters, kotorvju delivered victims in Kemv. Remained safe passengers have placed in the garrison House of officers, and in two days at the Murmansk airport have transferred to representatives general - nogo konsulvstva the USA in Leningrad and airline "Sir-ameriken".

Whether the commander of the ship Kim Chang Kvju and navigator CHvsh Sin бвіли задержанні in connection with provodimvsh investigation in the Union. During the investigation both members of crew polnostvju recognised the fault in infringement of air space of the USSR. They have confirmed and that commands of the Soviet fighters - of interceptors understood, but not podchinilisv. Both the commander, and the navigator obratilisv with pros - fight about the pardon in Presidium of the Supreme body of the USSR. Uchshyvaja their recognitions and the repentance, and also rukovodstvujasv humanity principles, бвіло decided to be limited to exclusion of the Korean pilots for limits of Soviet Union [312].

This history had continuation. The Korean party, probably, having realised, that so it is possible and to "fly" further, on September, 1st, 1983 has repeated the successful flight. «Боинг-747» airlines Korean Air Lines, carrying out flight №007, has essentially deviated the planned route and has broken air space of the USSR, however this time, having flown by over Kamchatka around a disposition of military bases of submarines has been brought down over Sakhalin the Soviet interceptor Су-15 [313].

Both histories testify to one - having finished to the logic end - condemnation and the further pardon of the Korean pilots with a view of settlement of Soviet-South Korean relations as in the above-stated case of pardon Gishara - the USSR if only has got political weight on international scene and criminal procedure means has beaten off any hunting to break its air space.

It is obvious, that in описвіваемой situations the question dared on diplomatic channels and, probably, by analogy to practice of the announcement by "personas non grata" of diplomats and инвіх приравненнвіх to them on a legal status persons of South Korean pilots ввідворили for limits of the USSR with transfer under the Republic Korea criminal jurisdiction. In such cases if the act forbidden ugolovnvsh by the law, has been made by the person possessing diplomatic immunity business should be ceased referring to ch. 2 items 4 UK RSFSR (now ch. 4 items 11 UK the Russian Federation).

Exclusion is carried out and now, the truth mainly administratively. Sometimes it leads to funny enough cases - that there is at least a deportation from Russia to Belarus in August, 2012 of the Georgian thief in S.Abasova's law. Having stayed in the places of confinement three years for storage of drugs, he should leave the country as the infringer of the migratory legislation. However Abasov it has appeared the stateless person and there was no place to expel it. The Russian policemen have recollected, that there is such remarkable country Belarus where the person can be brought without any documents as between Russia and Belarus border only on the card, no passport control, any boundary posts exists. Thus Abasova have taken to border, have transported on the Belarus party - and have left actually in an open country, having left home to write the official report about decree execution about exclusion.

But Belarus siloviki were on the alert: have immediately detained Abasova and have again taken out on territory of Russia: take away, hloptsy, to us it and for nothing not well -

314

Wives

By the way, pardon procedure during Soviet time had the features and was reduced not only to the reference or dispatch.

So, suits for pardon condemned to imprisonment for counterrevolutionary crimes, large plunders socialist actually - [314] sti, gangsterism and a premeditated murder were submitted for consideration Presidium of the Supreme body of the USSR only at presence in business of worthy circumstances, and also on special representation of courts of justice, Mi - nisterstva justices of the USSR or the Ministry of Internal Affairs of the USSR. Thus, there was a special procedure of the pardon at condemnation for separate categories of crimes. It would be quite good and to return now to similar practice then, probably, on some affairs (Khodorkovsky, Lebedev) there would be no such resonance in a press.

Certainly, the pardon is institute political, instead of exclusively especially legal, that specifies in its special role and a place in system pravoprimenitelnyh certificates. Besides, presence of such mixed institutes as the pardon or amnesty, confirms once again indissoluble communication of material and remedial criminal law [315 [316], that, in turn, allows to approve about existence of such interbranch design as the mechanism of the criminally-legal regulation, providing certain system of written pleadings according to variants of structure of its is standard-logic formula.

So, we will consider these variants, holding in mind the general formula «a crime - criminal prosecution - the criminal liability - punishment».

The variant the first when the crime is made by the minor - concerning it is carried out criminal prosecution after which termination it will be recognised, that its correction can be reached by application of forced measures of educational influence without punishment application. Two cases of development of the is standard-logic formula, on izvest - HBiM to the reasons not leading to awarding punishment [317] are possible:

1) when the minor is released from the criminal liability [318] in case of committing a crime nebolvshoj or average weight, criminal case (criminal prosecution) concerning such minor stops also court applies to it prinuditelvnuju a measure vospi - tatelvnogo the influences, provided chastvju the second statvi 90 Criminal codes of the Russian Federation (vvshositsja the decision about the termination of criminal case (criminal prosecution); materialvnoe the basis - ch. 1 items 90 UK the Russian Federation, protses a sou alvnoe - item 427 item, 431 UPK the Russian Federation);

2) when concerning the minor who has committed a crime nebolvshoj or average weight (ч.1 item 92 UK the Russian Federation), is enacted convict - telvnvsh a sentence with application принудителвнвіх measures vospitatelvnogo influences as it should be заменві the punishments, which appointments in this case it is not required (is enacted the verdict of guilty without awarding punishment; materialvnoe the basis - ch. 1 items 92 UK the Russian Federation, protses a sou alvnoe - ch. 1 items 432 UPK the Russian Federation) [319];

3) when concerning the condemned minor to deprivation свободві for committing a crime of average weight, and also grave crime, the verdict of guilty with its clearing of punishment with a premise in special teaching and educational establishment of the closed type of controls formation is enacted. Such decision is accepted in a replacement procedure appointed to the minor condemned imprisonments by other kind of punishment [320], however the premise in spetsialvnoe uchebno-voepitatelvnoe establishment закрвітого type is applied as prinu - ditelvnaja a measure vospitatelvnogo influences with a view of correction of the minor requiring in особвіх conditions of education, training and demanding spetsialvnogo the pedagogical approach (it is enacted obvi - nitelnyj a sentence with awarding punishment and clearing of it from - бвівания; materialvnoe the basis - ч.2 item 92 UK the Russian Federation, protsessualvnoe ч.2 item 432 UPK the Russian Federation).

Variant of the second - at the expiration of limitation periods of criminal prosecution:

1) if the convicted does not object, irrespective of a criminal trial stage (pre-judicial or judicial), i.e. during what moment of manufacture on business have expired limitation periods, criminal case stops, obvinjae - MBiй is released from the criminal liability (vvshositsja the decision about the criminal case termination; materialvnoe the basis - item 78 UK the Russian Federation; protsessualvnoe the basis - item Z ч.1 item 24, ч.2 item 27, item 254 UPK the Russian Federation).

The same rule should primenjatvsja, for example, and stages of appeal manufacture. In judiciary practice in this occasion even there was a conflict pra - BOBBix positions of vessels различнвіх instances, kotorvsh the author of these lines попвітался razreshitv in the scientific conclusion [321].

Sutv a question svodilasv to the following:

Whether the court of appeal instance in case of the expiration of limitation periods of criminal prosecution to cancel a verdict of guilty of the trial court is obliged and to cease criminal case under item Z ch. I cm. 24 UPK the Russian Federation?

Earlier given situation ambiguously enough regulated item 20 of the decision of Plenum of the Supreme Court of the Russian Federation from 23.12.2008 № 28 «About application of norms Criminally-remedially go the code of the Russian Federation, regulating about -

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izvodstvo in vessels appeal and court of cassation »according to which if the criminal prosecution limitation period has expired after appointment of session of the court, but to the introduction of a sentence into validity, court of court of cassation releases condemned from the punishment appointed under given article on the basis of point 3 of a part 1 item 24 UPK the Russian Federation. If the limitation period has expired before appointment of session of the court the verdict of guilty comes under to cancellation with phase-out on business if the convicted did not object to the criminal case termination on this basis.

At present the specified decision of Plenum of the Supreme Court of the Russian Federation has become invalid in connection with acceptance of the decision of Plenum of the Supreme Court of the Russian Federation №26 from 27.11.2012"About application of norms of the Code of Criminal Procedure of the Russian Federation, regulating manufacture in court of appeal instance» [322 [323], and the last in any way does not regulate a similar situation.

In considered criminal case, on which author of the present work the inquiry of the defender for a summer residence of the scientific conclusion [324], the Sverdlovsk provincial court has arrived, not cancelling, the appeal definition has changed a trial court sentence, having released condemned from punishment «in connection with the expiration of limitation periods of criminal prosecution under item 3 ч.1 item 24 UPK the Russian Federation and ч.8

Item 302 UPK the Russian Federation », that rather doubtfully and thus the court at acceptance of the decision was guided by articles 389.13, 389.20,389.28 UPK the Russian Federation.

The matter is that the eighth part of article 308 UPK the Russian Federation is applicable exclusively to such kinds of written pleadings as a court sentence, and in this case the court of appeal instance has taken out appeal definition which earlier taken out verdict of guilty has changed. Thus, not having referred at all on item 389.26 UPK the Russian Federation regulating an order of change of a sentence of the trial court. But any of cases of change of the sentence, specified in item 389.26 UPK the Russian Federation, to a considered case on criminal case does not concern.

Concerning the eighth part of article 302 UPK the Russian Federation is a variant of a verdict of guilty of the trial court, enacted in case of disagreement of the defendant on the criminal case termination on such nereabilitirujushchim to the bases as the expiration of limitation periods of criminal prosecution and owing to the certificate about amnesty. Thus, in the criminal trial doctrine it is considered, that in such cases the verdict of guilty without awarding punishment is enacted. Differently, about clearing of speech punishment here does not go, punishment simply is not appointed owing to the is standard-logic formula of elements of the mechanism of criminally-legal regulation.

It, for example, means, that as item 78 is in the eleventh chapter of the Criminal code of the Russian Federation remedial analogue of institute of clearing of the criminal liability in criminal law is the institute of the termination of criminal case in criminal trial. Also the question similarly dares at application of the amnesty releasing from the criminal liability (ch. 2 items 84 UK the Russian Federation).

As has shown studying of the report of session of the court of appeal instance on criminal case № 22-7079/2014 from 26.08.2014, the defendant absolutely unambiguously petitioned before court of appeal instance for [325] termination of criminal case behind the expiration of limitation periods of criminal prosecution, sledovatelvno, the given petition, at least, should бвіло бвітв is considered by court of appeal instance and it is authorised in the appeal court ruling.

According to ch. 2 items 271 UPK the Russian Federation court, ввіслушав opinions of participants judicial razbiratelvstva, are considered by each declared petition and satisfies it or vvshosit definition or the decision about refusal in satisfaction of the petition. Thus, the court ruling should бвітв мотивированнвім (ч.4 item 7 UPK the Russian Federation).

As followed from the maintenance of appeal definition of the Sverdlovsk provincial court on criminal case № 22-7079/2014, the court has counted:

«In connection with the expiration of limitation periods of criminal prosecution podsu - dimvsh the Russian Federation comes under to clearing of punishment», instead of from the criminal liability as that demands item 78 of the Criminal code of the Russian Federation, despite requirements of item 389.26 UPK, has changed a trial court sentence.

Judiciary practice of the Supreme Court of the Russian Federation vesvma unequivocally treats the given situation:

«It is necessary otmenjatv a sentence of the trial court with the criminal case termination in connection with the expiration of limitation periods of criminal prosecution» [326]. Criminal case cannot бвітв is initiated, and the initiated criminal case comes under to the termination owing to the expiry of the term of statute of limitation in criminal cases if the defendant against it does not object (item 24, ч.2 item 27 UPK the Russian Federation).

Thus, if the defendant petitions for the criminal case termination court according to item 389.21 UPK the Russian Federation by criminal case consideration in an appeal order cancels a verdict of guilty and ceases criminal case on the basis of item Z ч.1 item 24 UPK the Russian Federation. Differently, operating at golo the vno-remedial law unequivocally treats the given situation by criminal case consideration in court of appeal instance.

However if the defendant does not petition (has not expressed the consent) on the termination of criminal case owing to the expiration of limitation periods of criminal prosecution, court then has the right to change only a verdict of guilty, having released condemned from punishment.

The similar position is stated in the decision of Presidium of the Supreme Court of the Russian Federation №138-П14ПР [327].

2) if the convicted objected to the criminal case termination in stages of preliminary investigation and preparation and appointment of session of the court, criminal proceeding proceeds in the general order to its permission on a being (ч.8 item 302 UPK the Russian Federation [328]); or the court retrained actions convicted on less grave crime therefore has expired a limitation period in connection with its fulfilment; or during proceeding the new criminal law which has established the reduced limitation period has become effective, expired during proceeding [329] - the court enacts a verdict of guilty without the awarding punishment, convicted is released from punishment, and punishment naznachatv is not required [330], poskolvku for davnostvju in criminally-legal sense act is not considered наказуемвім [331] (materialvnoe the basis - ч.8 item 302 UPK the Russian Federation [332 [333], protsessualvnoe - item Z ч.1 item 24, ч.2 item 27, item 3 ч.5, ч.8 item 302 UPK the Russian Federation).

In the given version there is one more variant - so назвіваемвій "otsrochennvsh" обвинителинвій a sentence without awarding punishment when the criminal prosecution limitation period has expired after appointment of session of the court, but to the introduction of a sentence into validity. In this case the court of appelate jurisdiction releases condemned from the punishment appointed on given statve on

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The basis of point 3 of a part 1 statvi 24 UPK the Russian Federation

Not casually, probably, in the project of the decision of Plenum of the Supreme Court бвіло ввісказано doubt otnositelvno that, vkljuchatv or not to include in the decision text following position:

«... When limitation periods of attraction of the person to the criminal liability have expired after the decision the trial court accusers but go a sentence in manufacture on business in court of appeal instance to vvshesenija it of the total decision, the court of appeal instance is competent prekratitv criminal case, if the person who has committed a crime, against it not vozrazha -

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et ».

In rezulvtate the given point бвіл is stated in absolutely other treatment: «If the trial court in the presence of the bases provided by point 3 of a part 1 statvi 24, stattjami 25, 28 and 28.1 UPK Russian Federation, has not ceased criminal case and (or) criminal prosecution according to statvej 389.21 UPK the Russian Federation the court of appeal instance cancels a sentence or other decree of the first instance and ceases criminal case and (or) criminal prosecution. Thus the court should ВВІЯСНИТВ, whether objects condemned against pre - krashchenija criminal case and (or) criminal prosecution».

Besides, in vvnneprivedennom the project бвіло the erroneous assumption that «if there are the bases provided by point 3 of a part 1 statvi 24 UPK Russian Federation is made, it is necessary for vessels rukovodstvovatvsja chastvju 8 statvi 302 UPK the Russian Federation, providing the decision of a sentence with clearing condemned from punishment. In that case the court should appoint punishment and release from its serving the person (ввіделено me - JU.K.)» [334 [335] [336]. It is asked: «What for was naznachatv punishment if act has ceased бвітв наказуемвім?»

Variant the third - owing to the certificate about amnesty:

1) if the convicted does not object, irrespective of a criminal trial stage (pre-judicial or judicial) criminal case stops, convicted is released from the criminal liability (vvshositsja the decision about the criminal case termination; materialvnoe the basis - ч.2 item 84 UK the Russian Federation; protsessualvnoe the basis - item Z ч.1 item 27, ч.2 item 27, item 254 UPK the Russian Federation).

For example, when the certificate about amnesty предписвівает prekratitv уголовнвіе the affairs which are in manufacture of investigation agencies bodies, inquiry or vessels, concerning the persons who have committed crimes in carrying out of counterterrorist operations in territories of subjects of the Russian Federation, being in limits Southern federalvnogo districts, которвіе dobrovolvno otkazalisv from participation in the illegal armed formations or устойчиввіх вооруженнвіх grup -

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Groin (gangs) and (or) have handed over the weapon and the military technics

2) if the convicted objects, criminal proceeding proceeds in the general order to its permission in essence, the court enacts a verdict of guilty without the awarding punishment, convicted is released from punishment (materialvnoe the basis - ч.2 item 84 UK the Russian Federation, protsessualvnoe - item Z ч.1 item 27, ч.2 item 27, and. 3 ч.5, ч.8 item 302 UPK the Russian Federation).

Such kind of a sentence vvshositsja on criminal cases about crimes, when in the certificate about amnesty указвівается on clearing of punishment certain [337 [338]

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Categories of persons, irrespective of a kind and the size of punishment from which it is released condemned [339 [340] (and in некоторвіх cases and a crime category).

3) if the convicted objects, criminal proceeding proceeds in the general order to its permission in essence, the court enacts a verdict of guilty with awarding punishment and clearing of its serving, convicted is released from punishment application (the material basis - ч.2 item 84 UK the Russian Federation, remedial - item Z ч.1 item 27, ч.2 item 27, and. 2 ч.5, and. 1 ch.b item 302 UPK the Russian Federation).

The given kind of a sentence was taken out on criminal cases about crimes for which punishment over five years of imprisonment is provided and which have been made about day of coming into force of the certificate about amnesty by the women having minor children, pregnant women, women is more senior 55 years and men punishment in ispravi - тельHBiх establishments if the court recognised as necessary to appoint punishment till five years of imprisonment inclusive is more senior 60 years, earlier not leaving, the specified condemned were released from application of punishment [341 [342].

Variant the fourth - owing to conditions change:

1) if the convicted does not object, is not dependent on a criminal trial stage (preliminary investigation or proceeding) criminal case stops, convicted is released from the criminal liability (the decision about the criminal case termination is taken out; the material and remedial basis by the law are not provided, however from an obligation position enter into logic of the is standard-logic formula of the mechanism criminally-legal reguli - rovanija).

2) if the convicted objects, criminal proceeding proceeds in the general order to its permission in essence, the court enacts a verdict of guilty without the awarding punishment, convicted is released from punishment (materialvnoe the basis - item 80.1 UK the Russian Federation, about - tsessualvnoe - item 3 ч.5 item 302 UPK the Russian Federation).

Such cases are possible, for example, when in evasion from passage alvternativnoj civil службві there were provided statnej 23 Federalvnogo the law «About alvternativnoj to civil service» bases for uvolvnenija from it [343] or when the statutory bases, at presence которвіх citizens not призвіваются on military service, have arisen in evasion from призвіва on military service (for example, in case of a birth at the citizen of the second child or receipt of the person in state obrazovatelvnoe establishment Bbicshego professionalvnogo formation and training under the internal form) [344]. Others известнвіе to practice cases of change of conditions is an adoption of law of the postponed action for the period before its coming into force or, for example, elimination of criminality of the basic act in which force vtorichnvju, proiz - воднвіе from it crimes lose the social danger [345].

Meanwhile, in the legal literature there is an opinion, that the change of conditions causing essential decrease of the social danger guilty, can be recognised and individual circumstance, to one of which the marriage with sustained [346], that, in our opinion, rather diskussionno, in particular, can be carried. Though in it there is also a share of the truth.

So if to address to item 134 of the Criminal code of the Russian Federation (in red. The Federal act from July, 27th, 2009 № 215-FZ [347] and later) in it the note according to which the person who for the first time has made sexual connection with the person, not reached shestnadtsatiletnego age and the puberty, made by the person who has reached of eighteen-year age, is released by court from punishment if it will be established contains, that this person and the crime committed by it have ceased to be socially dangerous in connection with the introduction into marriage from the victim (victims).

Proceeding already from the resulted formulation, it is necessary to notice, that the given basis is applicable at presence at once two conditions (the person has ceased to be socially dangerous and the act made by it) whereas under the classical formula of change of conditions presence only one of two specified conditions is necessary.

Secondly, if to address to the legislative technics it is possible to assume, that if in the criminal law there are special cases of change of conditions they should be especially reserved in Criminal code item 80.1 by an example with ч.2 item 75 UK the Russian Federation.

Thirdly, under the general rule, conditions change assumes such essential changes in the objective validity, including connected and with the person who has made given act which exclude fulfilment of similar actions by it [348] and eliminate their social danger.

And what occurs in a considered case? Actually the person receives remedially issued consent of the victim to injury of last [349], otherwise, changes have occurred «not in advantage» the victim that does not exclude continuation of fulfilment of similar crimes in the relation from the victim, does not consider the criminal past convicted [350]. Besides, the criminal law at all does not exclude a case of possible divorce after clearing of punishment by the sentence which has entered validity of court, and the most important thing, does not provide a consequence of divorce from the victim (in any sense concluded under the threat of approach of the criminal liability) for condemned, which has made sexual connection with the person who has not reached shestnadtsatiletnego age and the puberty.

At the same time, ancient sources criminal zakonodatelvstva objazatelvno provided such consequences. So, in text Торві указвівается, that nasil - nik besides it can zhenitisja on the girl raped by it, should pay to her father as indemnification that sum which itself would receive as a dowry if operated legitimate by [351]. Besides, under no circumstances "guilty" could not divorce from the victim, it lost this right in general!

At the same time the oral Torah (Talmud) approved, that the tyrant obliged to marry only in the event that the victim agreed marriage. Moreover, the certain conditions, concerning most brachujushchegosja the tyrant were reserved also. In its role, certainly, there could not be an experienced criminal who has secretly made before not one violence. And when it was a question of the sexual maniac or about the person, to marry for which girl refused flatly, it led not in Sangedrin, and on court of the tsar. And that, as a rule, sentenced the tyrant to death by means of a sword [352].

Resulted (even such superficial) reasons testify, that all the same it not the special case of change of conditions, is an example of unsuccessful legislative technics more likely, and it is not so much in sense material, how many in remedial. And that is why. It is enough to result the following example.

Devjatnadtsatiletny I has made sexual connection with pjatnadtsatiletnej S.Po to the given fact бвіло criminal case to signs of the crime provided ch is initiated. 1 items 134 of the Criminal code of the Russian Federation. The court has enacted concerning I обвинителиHBiй a sentence with awarding punishment which it has appealed in the Full court on ugolovnvsh to provincial court affairs, thus having given in the court of appelate jurisdiction the original svidetelvstva about a marriage with S sra -

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The storage after the sentence decision regional court.

There is absolutely proved question - and on what basis otme - njatv or izmenjatv a sentence of regional court if at the moment of its decision of data obstojatelvstva simply there was also to court nothing about it бвітв it could not is known, and, sledovatelvno, the sentence is zakonnvsh, obosnovannvsh and fair.

Thus, ugolovnvsh the law, entering the new basis of clearing of punishment, at all "has not secured" pravoprimenitelja instructions on that, and at what stage of the criminal trial given obstojatelvstvo can imetv a place. In the resulted example of a variant of the decision can бвітв, at least, two are a stage of execution of sentence or a stage of renewal of criminal proceeding in view of HOBBix obstojatelvstv.

Probably, legislators had in view of most the elementary variant - that given obstojatelvstvo (the introduction into marriage from the victim) arises tolvko in a stage judicial razbiratelvstva in the trial court following the results of which, by the way speaking, the verdict of guilty without awarding punishment (a floor-mat - rialvnoe the basis - the note 1 to item 134 UK the Russian Federation is enacted, protsessualvnoe - item Z ch. 5 items 302 UPK the Russian Federation).

The variant the fifth - is connected with nevozmozhnostvju applications to foreign subjects, stateless persons, and also the persons who do not have places constant [353]

Residing in territory of the Russian Federation, punishment in the form of restriction свободві (ch.b item 53 UK the Russian Federation). And when in the relation даннвіх persons, вперввіе committed a crime nebolvshoj weights, at absence obstojatelvstv, uka - заннвіх in item 63 UK the Russian Federation, is considered in court criminal case about a crime, for which fulfilment ugolovnvsh by the law is provided tolvko deprivation свободві and restriction svobodv і, in these cases imprisonment remains for them edinstvennvsh a punishment kind (ch. 1 items 56 UK the Russian Federation in red. Federalvnogo the law from December, 7th 2011г. № 420-FZ). Sledovatelvno, the court has the right naznachitv it conditional

Or realvnoe deprivation свободві. Besides, under the law in such situations probably application of punishment taking into account positions of item 64 UK the Russian Federation or the decision of a sentence without awarding punishment [354 [355].

So, we will bring some result, we sum up cases, at которвіх the is standard-logic formula of the mechanism of criminally-legal regulation predpisy - vaet postanovljatv a verdict of guilty without awarding punishment:

1) when concerning the minor who has committed a crime of small or average weight (ч.1 item 92 UK the Russian Federation), is enacted a verdict of guilty with application of forced measures of educational influence instead of the punishment which appointments in this case it is not required;

2) in case of the expiration of limitation periods of criminal prosecution if the convicted objects to the criminal case termination, criminal proceeding proceeds in the general order to its permission on a being (the convicted is released from punishment, and punishment to appoint it is not required as behind prescription in criminally-legal sense act is not considered punishable);

3) owing to the certificate about amnesty, in which указвівается on clearing of punishment of a certain category of persons, irrespective of a kind and the size of punishment from which it is released condemned (if the convicted objects to the criminal case termination);

4) owing to conditions change (if the convicted objects to the termination of criminal case [356]);

5) when reached in seven hell tsat a wattle fence go age the person, вперввіе the made sexual connection with the person who has not reached shestnadtsatiletnego age and the puberty, and the crime committed by it have ceased бвітв socially opasnvshi in connection with the introduction into marriage from the victim (victims);

6) in case of condemnation иностраннвіх citizens, stateless persons, and also the persons, not having the place of permanent residence in territory of the Russian Federation, for crimes, for fulfilment которвіх cannot бвітв it is appointed opre - delejnyj the kind of punishment provided by the sanction statvi of special part UK the Russian Federation.

Thus in case of adjudgment without awarding punishment about it also указвівается in the sentence substantive provision (ch. Z item 308 UPK the Russian Federation).

Ввішеприведеннвіе вві in дві prove to be true also provedennvsh the content analysis of materials уголовнвіх affairs, изученнвіх the author at a writing present работві (the Appendix №1 see).

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A source: Kozubenko Yuri Vyacheslavovich. Criminal procedure aspects of the interdisciplinary mechanism of criminal law regulation. DISSERTATION for the degree of Doctor of Law. Ekaterinburg - 2018. 2018

More on topic §2. System of the basic written pleadings at clearing of the criminal liability and of criminal prosecution:

  1. the criminal case and criminal prosecution termination in connection with death of the person who are coming under to bringing to criminal liability, in the light of the presumption of innocence
  2. § 2. Features of the modern criminal legislation of the foreign countries regulating clearing of the criminal liability on affairs about crimes in sphere of economic activities
  3. § 3.3. The special bases of clearing of the criminal liability (punishment) for granting of the false information dangerous to the criminal trial, under the legislation of Russia, the countries of continental Europe and the USA
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  5. § 1. The legal nature of clearing of the criminal liability on affairs about crimes in economic activities sphere
  6. CHAPTER 3. Features of the criminal liability for the organised criminal activity and unification of criminal legislations of Russia, Belarus and Ukraine in sphere of counteraction to criminal societies (the criminal organisations)
  7. §1. Kinds of clearing of minors from the criminal liability under the legislation of the Russian Federation and Socialist Republic Vietnam
  8. § 2 Bases and conditions of the termination of criminal case and criminal prosecution, their classification.
  9. § 2. The general and special bases of clearing of the criminal liability on affairs about crimes in economic activities sphere
  10. §2. Concept and history of development of institute of clearing of minors from the criminal liability under the legislation of the Russian Federation and Socialist Republic Vietnam
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