Bolshakova D. Imposition of criminal penalties on the basis of a conciliation agreement and a plea agreement

This thesis is the first comprehensive study of theoretical and practical issues related to improvement of formalization of imposition of criminal legal measures on the basis of reconciliation and plea agreements with the aim of contributing to their uniform understanding and interpretation in practice. The study formulates and develops a number of the author’s ideas (approaches) which are significant for the science of criminal law, and which, recognizing the academic achievements of the predecessors, allow for a somewhat new understanding of the existing possibilities of criminal law with regard to legal regulation of imposition of punishment and discharge from punishment on probation on the basis of agreements, and for highlighting the resources for its improvement. The central ones are as follows: – the agreeing on a punishment or the imposition of punishment and discharge from it on probation by the parties to the agreement in the practice of their concluding is an integral part of mutual concessions on the way to finding a balance in resolving the conflict that would satisfy the interests of individuals (parties to the agreements), public interests and interests of justice. However, the resolution of a criminal conflict through the agreement conclusion mechanism can only achieve the goal if the criminal consequences for the guilty person, even if they are more lenient than in proceedings considered under the general procedure, are chosen in accordance with the requirements of the law; – the understanding of the institution of agreements in criminal proceedings adopted in the legal doctrine makes it quite acceptable to treat the practice of imposing a punishment closer to the lower limit of the sanction in the absence of fundamental aggravating circumstances or the transition to another, more lenient punishment. In turn, recognizing the process of agreeing on a punishment for a suspect or accused as one of the mandatory conditions of such agreements requires that the content of the agreement should include the essential circumstances of the criminal proceedings that justify its limits in a particular case in accordance with the general principles and special rules of imposition of punishment; – it is inappropriate both to level the differences in justification of the limits of punishment imposed by the court in criminal proceedings under the general procedure (without an agreement) and in proceedings based on agreements, the determining purpose of which is specifically to mitigate the criminal consequences of a criminal offense committed by the guilty person, and to make them absolute; – recognition of the fact that the legal regulation of the court’ power to impose a punishment agreed by the parties to the agreement, in the absence of any specifics regarding its type or amount, which would clarify or supplement a certain of the general principles of punishment imposition, is not a special rule of punishment imposition, but rather a general principle of punishment imposition, which defines the court’s powers under the terms of a reconciliation or plea agreement, which are different from the court’s powers to impose punishment in criminal proceedings under the general procedure (without an agreement), i.e., is a tool for harmonizing the provisions of substantive and procedural criminal law; – in the absence of formalized regulations on the peculiarities of imposition of punishment on the basis of agreements that would clearly distinguish between judicial discretion and the rights of the parties in matters of punishment agreement, given that the provisions used in the articles of the «Punishment and its imposition» section, where the court is mentioned as the only subject of imposing punishment, are relevant before the introduction of the institute of criminal proceedings based on agreements, when the parties to the agreements are entitled to choose possible criminal consequences for the person who committed a criminal offense, today cannot serve as the only correct guideline for a clear delineation of the powers of the parties to the agreement in this matter; – the trend of the last five years indicates a decrease in the number of refusals to approve agreements in criminal proceedings, which may confirm the gradual development of established approaches to the correct interpretation and compliance with the requirements of criminal and criminal procedural legislation, including in terms of agreeing on the punishment by the parties to the agreements.