Israielian A. Exemption from criminal liability due to reconciliation of an offender and a victim

The dissertation is the first special complex research in Ukraine on exemption from criminal liability due to reconciliation of an offender and a victim in the context of renewed criminal legislation of Ukraine and European integration processes. It is established that reconciliation is an effective means of resolving criminal law conflict since the neutralization of negative consequences of an offence happens as a result of participants interaction. The following key characteristics of reconciliation are identified: voluntariness, an initiative can come from both the participants of a conflict as well as third party, motivation does not matter, the compensation for damage sustained or reparation is both an action (interaction of the parties) and the result of the action (neutralization of negative consequences). It is emphasized that exemption from criminal liability due to reconciliation of an offender and a victim is the form of realizing reconciliation with the scope of criminal law which a) is an effective alternative to a state’s reaction to criminal offences and application of repressive measures to offenders, b) is an optimal way to resolve criminal law conflicts that occur owing to the commission of criminal misdemeanors and non-grave crimes, c) significantly reduces the burden of criminal justice system that can place grated emphasis on grave and especially grave crimes, d) the rights of a victim are restored much faster. It is argued that exemption from criminal liability is an independent and multifaceted institute of criminal law that is realized beyond the institute of criminal liability since a person is exempted from potential criminal liability. Exemption from criminal liability is an incentive measure of criminal law, a compromise within the criminal justice, an alternative to criminal coercion. It is found that exemption from criminal liability due to reconciliation of an offender and a victim as the exemption from criminal liability: is a refusal to apply restrictions to rights and freedoms of a person who committed a criminal offence; is applied once the corpus delicti is present in the persons actions; presumes no official conviction of a person in form of a sentence (judgment of conviction); terminates criminal law relations between the state and the exempted person; facilitates achievement of objectives of criminal law without using criminal law coercion. It is highlighted that exemption from criminal liability due to reconciliation of an offender and a victim is general, mandatory (imperative) and unconditional type of exemption. It is stated that grounds for exemption from criminal liability are necessary circumstances provided in the Criminal Code of Ukraine (hereinafter – the CC) for exemption from criminal liability. A condition of exemption from criminal liability is a certain requisite of a persons conduct after a court decision on release of the person is rendered and noncompliance with which leads to criminal law consequences. Commission of a criminal offence is a ground to exempt a person from liability and not a precondition. It is found that there are following grounds to exempt from criminal liability due to reconciliation of an offender and a victim: reconciliation with a victim; either a criminal misdemeanor or reckless non-grave crime was committed for the first time except for corruption offence, criminal offences that are connected to corruption, violation of traffic rules or rules of operation of vehicles by persons who operated them under the influence of alcohol, narcotics, medication, etc.; compensation of the losses or damage inflicted. The abovementioned list of grounds is full. It is stated that as result of separating criminal offences based on criminal procedural criterion and mechanical changes to Art. 46 of the CC the scope of application of exemption from criminal liability due reconciliation of an offender and a victim has been limited. It is argued that scope of application of Art. 46 of the CC should expanded with non-grave intentional crimes. It is proved that in case of exemption from criminal liability due to reconciliation of an offender and a victim courts cannot demand the person to admit his/her quilt as the person’s consent is sufficient. Specific scientifically substantiated proposals on improvement of acts of the current legislation of Ukraine in the part of legal regulation of exemption from criminal liability due to reconciliation of an offender and a victim.