Grace on the blood

Doctor of Legal Sciences Elena Lukyanova - about the Institute for the Cl Herald of the killers and that these decrees can and should be appealed

Already a day has not subsided, caused by the pardon of the “hero” of the war of a resident of Kemerovo Vladislav Kanyus, who killed his ex -girlfriend Vera Pekhtelev, inflicting more than a hundred wounds to her. Kanyus was convicted of 17 years, served several months, went to the war, where, according to Dmitry Peskov, "he ate his guilt with blood." Kanyus was followed by the pardon of one of the organizers of the murder of Anna Politkovskaya Sergei Khadzhikurbanov, who was sentenced in 2014 to 20 years in prison. Khadzhikurbanov, according to rumors, got into the zone at the end of 2022, began serving as commander of the intelligence department and rose to the battalion commander. The information was confirmed by the lawyer Khadzhikurbanova Alexei Mikhalchik: “According to the first contract [Khadzhikurbanov], he participated in“ Svo ”as a prisoner, he was pardoned further and now participates in“ Svo ”as a civilian military, concluding a contract from the Ministry of Defense.”

According to the agency, another 17 convicts for loud murders were pardoned by Putin. In fact, the killers pardoned for participating in the war are more. Many of them die at the front, the affairs of others did not cause resonance.

Against the background of what is happening, there is real reason to fear: soon we can find out that the murder participants of Boris Nemtsov were free. What is this? How is it? Peskov’s stories about redeeming guilt with blood do not give us answers to these questions. How is pardon in Russia in general?

In the Constitution, the word "pardon" is used twice. In paragraph “c” Article 89: “The President of the Russian Federation ... Close ”. And in Part 3 of Article 50: "Every convicted person has the right to ... ask for pardon or mitigation of punishment." Both are called pardon. Both are the right with the legal force of the Basic Law. Both can lead to the release of the convicted person from punishment or to mitigate him of punishment. This is a similarity. And this similarity is exhausted.

And everything else is different. The right to mercy and the right to ask for pardon is two different rights . They have a different story, different subjects, different entities, different conditions and procedures. And even the legal consequences of the realization of these two rights do not always coincide.

Now in order.

1. The right of the head of state to give mercy is to fully or partially release the convicted person from punishment or soften him - much older than the right to ask for pardon. Some believe that the right of amnesty and pardon arose in ancient Rome, when an amnesty was applied during the republic by decision of folk comic and the Senate, and during the empire this right passed to emperors. Others refer to a historical fact related to a much more ancient era: although in the laws of Hammurabi (XVIII century BC) there are no references to condescending to criminals, there is a known case when the son of King Babylonia Hammurapi pardoned the slave subject to death. There is information about the pardon that occurred in ancient Egypt 200 years earlier. This case, which took place in the XX century. BC. e., described in the Egyptian papyruses stored in the Berlin Museum, under the name "The Story of Sinheha."

With the development of statehood (X-XVII centuries), the question of the right of pardon from the field of private persecution and punishment gradually passed into the sphere of state legal relations. The pardon was carried out on the basis of sole and arbitrary rule and received fixing in criminal legislation. During this period, it did not have a formal definition, as well as legislative consolidation of the stages of application and types. Squid was usually understood all the actions of mercy based on the feelings of love and compassion for the criminal, opposite to the strict idea of ​​criminal law.

At the turn of the XIX - XX centuries, a single understanding of pardon has been developed in many countries, the types and stages of its application were determined. In some states, pardon was differentiated from amnesty and received constitutional consolidation. His various forms appeared: unconditional pardon - release from serving a sentence; differentiation pardon - reduction in the term (measures) of punishment; alternative pardon - replacing the punishment with a milder appearance; A pardon that eliminates the consequences of condemnation is the removal of criminal record. Nevertheless, it was considered and is considered precisely as the right of the state by himself individually to decide on the release from serving a sentence or to mitigate it.

And only from the middle of the 20th century, the concept of pardon began to be considered wider - as one of the engines of the development of the penitentiary system. The legislation gradually began to depart from the excessive severity of the punishment and began to penetrate the humane attitude towards the convict. In this regard, in most constitutions of modern states, the right to ask for pardon was enshrined. In international law, norms that oblige states have appeared in which such a measure of punishment as the death penalty was not canceled, to provide for the right to be sentenced to this extent to have a pardon.

2. These two rights have different subjects . The right of the only special entity to mercy, “give mercy” and the right to ask many about mercy.

The right to give mercy is recognized as an exceptional prerogative of the supreme power. As a rule, the head of state is the only person who enjoys justice if independence and independence is pardoned. It belongs to the presidents - in France (Article 17 of the Constitution), in Greece (§ 1 of article 47 of the Constitution), in Italy (Article 87 of the Constitution), in Poland (Article 139 of the Constitution), in Latvia (Article 45 of the Constitution), in India (Article 7 of the Constitution), in Kazakhstan (paragraph 15 of Article 44 of the Constitution), etc. Great Britain, in Spain (part 3 of article 56 of the Constitution), in Denmark (Article 24 of the Constitution). In the Soviet Union, the collegial head of state possessed the right to mercy - the Presidium of the Supreme Soviet of the USSR (Clause "K" of Article 49 of the Constitution of the USSR of 1936, Clause 11, Article 121 of the Constitution of the USSR of 1977).

The pardon is carried out on behalf of the state. Therefore, the powers to pardon, as a rule, cannot be delegated to other bodies or officials. Although there were and there are exceptions. For example, under the pre -revolutionary Russian legislation, the right of pardon, except the emperor sovereign, was endowed with the Commander -in -Chief in wartime. In Germany on cases considered in the Supreme Court, the emperor could have pardoned, and in free cities such as Hamburg, Bremen, the act of pardon was issued by the Senates, while pardon for minor crimes could give the heads of individual lands.

The subject of the right to ask for pardon is any convict regardless of citizenship . Although in practice, the circle of subjects of rights, of course, is wider.

The idea of ​​the implementation of pardon was often formed in the sovereigns under the influence of a variety of intercessors. But such trains did not have a special universal right and or simply asked for mercy,

Or they received a single right from sovereign to petition for pardon as an incentive.

There are reverse examples in history - a petition against pardon. The most striking of them is the relationship between the prosecutor of Judea Pontius Pilate and Sanhedrin (the Council of Elders in Ancient Judea) before the execution of Christ. Since the Jew was under the rule of the Roman Empire, the Jews did not have the right to enforce the death sentence without approval by the Roman governor. Therefore, Jesus Christ led to the prosecutor Pontius Pilate. Not finding any guilt in the actions of Christ, Pilate decided to let him go, but at the same time he met the resistance of the Sanhedrin. Then he decided to take advantage of the custom that existed in Palestine: on Easter holiday, the ruler could have mercy on one criminal by his choice. However, seeing Christ, the Jewish high priests screamed: " Bright, cut him off!" Moreover, they resorted to the very extreme tool, saying: “ If you let him go, you are not a friend of Caesar ...” In these words, Pilate’s accusation of treason was heard. And Pilate "washed his hands." Having stated that he was innocent in the blood of the righteous, he refused the exclusive right to pardon granted to him. With amazing ease, a high -ranking plenipotentiary of the state, which developed a classic system of law, has left the legal soil. Roman law knew such a form as plebiscite (the vote of the common people), but did not allow any elements of oclocracy (the authorities of the crowd). Pilate had both the right and the reason to have mercy on Christ and, conversely, had no right to provide a solution to the question of the life or death of a person with an excited crowd. But he did not take advantage of his right, remaining for centuries in history a tragic cowardly hero.

3. These two rights have a different entity, different content and different volume . The right to mercy is an exclusive right to the fullness . During its implementation, the head of state is not connected by any legislative framework and has the right to accept or not take into account any circumstances: the nature of the crime, the identity of the convict, the course of the process, public opinion, etc. This is how this right was formulated in the legislation of tsarist Russia. Art. 165 Code of punishments of 1845–1885 read: “The pardon and forgiveness of the perpetrators in no case depends on the court. It directly comes from the supreme autocratic power and can only be the action of the monarch of mercy. ”

In exactly the same way, the Constitutional Court of the Russian Federation described it in the same way: “The implementation of pardon is enshrined directly in the Constitution of the Russian Federation by the exclusive prerogative of the President of the Russian Federation as the head of state. The act of pardon is valid independently, does not require any court decision for its execution, it is implemented outside the framework of the administration of justice for criminal cases. ”

Moreover, the president has the right to have a pardon regardless of the stage of the criminal process and the request of the convict, which acts just an optional basis for pardon. The president is not connected by the procedure for pardon, which is established by his own decree.

The Constitution does not connect the exercise of pardon with certain conditions or prerequisites and does not oblige the legislator to resolve them, as well as does not open up opportunities for any restriction.

The second law is the right -to -thelert, the right to ask for mercy to the convict reflects the humanistic trends of the modern world and at the same time is one of the measures to preserve the life of the convict for punishment in the form of a death penalty, until it cancel it. In some states, pardon went beyond the framework of criminal law relations: the right to ask for condescension was granted not only to convicts for criminal offenses, but also to those who are held accountable for administrative and other offenses (road transport, tax).

Currently, the attention of scientists, human rights activists and legislators around the world is transferred from authorities to citizens. Therefore, a peculiar scientific bias occurred: they write less about the right to mercy, and more about the subjective law of every convict about condescension is more. The implementation of this right becomes an integral part of the state-legal policy of the modern world. In the conditions of the humanization of the penal system, its guarantees are strengthened, including by expanding the functions of public control over the conditions of maintenance of convicts. This right began to be considered not only as a preventive means of correcting the behavior of the convicted person, but also as a way to smooth out contradictions in the system of criminal and criminal-executive legislation. This is evidenced by the widespread use of pardon in a crisis of the penal system in the 90s of the last century. Maybe that is why confusion occurs in the heads. Although the development of one right in no way cancel and does not change the content of another.

4. The legal consequences of the realization of the right to mercy and the right to petition for pardon do not always coincide. The easiest way can be illustrated by the example of a rearrangement of punctuation marks in the winged expression “you cannot be pardoned to execute”. For the exclusive right to the head of state, at his own discretion, this expression will always sound as “ you cannot execute, pardon ”. That is, here, in any case, the consequence will be the abolition or mitigation of punishment.

But for the right to use, such a result is not obvious. In response to a petition for pardon, the president can arrange signs as he considers necessary and correct: “ you cannot execute, have a pardon ” or “ execute, you cannot have mercy .” Therefore, the guarantee of the right to puzzle itself, but conscientiousness and mandatory when considering a petition. The Constitutional Court has repeatedly noted that the granted Article. 50 (part 3) of the Constitution of the Russian Federation to each convict the right to ask for a pardon or mitigation of a punishment does not imply satisfy any request for pardon, that is, does not mean that the convict must be pardoned without fail (determination of January 11, 2002 No. 61-O, February 19, 2003 No. 77-O and December 21, 2006 No. 567-O).

5. Two rights have different conditions and procedures . Siliation as the exceptional authority of the head of state can be carried out both at his immediate discretion, and at the request of the court, administration or individuals.

The act of pardon can be issued without a petition, without consent, without approval, and even contrary to the will of the convict. It cannot be made dependent on the will of the sweetheart, since it is an act of mercy. So, on March 8, 2003, 97 women were pardoned by Putin, not a single candidate of whom was considered in the regional pardon commissions. The president overtook a sudden attack of love and mercy for Kanyus and Khadzhikurbanov - here is a decree on pardon. It has every right.

Does not limit the right to mercy and the position of Part 2 of Art. 84 of the Criminal Code, from which it follows that pardon is applied only to the convict. The already mentioned determination of the Constitutional Court clearly says: "The act of pardon ... is implemented outside the framework of the administration of justice for criminal cases." Therefore, the right to mercy can be used at any stage of the criminal process: 1) before the court sentence, 2) after the sentence, but before its execution, 3) during the serving of the sentence. In the first case, pardon is called an abolition, in the second - pardon in the proper sense, in the third - the restoration of rights. In the last two cases, pardon can be complete, unconditional, canceling all the punishment, with all its consequences, or partial, conditional, only mitigating the severity of the punishment. If you have mercy, after a judicial sentence, there can be no talk of a sweetheart, since it concerns a person who is already convicted of guilty and sentenced to punishment. Only during the aboliament, the one to whom mercy extends is not found still guilty, can he recognize himself innocent and he cannot be refused the right to demand the court that the accusation of the crime is removed from him not by condescension, but according to the results of the study of all the circumstances of the case by a court sentence.

The right-handing is implemented in a special, specially prescribed manner. To consider petitions for pardon in Russia, as in some other states, there are special institutions (in France and in Switzerland - special commissions under the president). In Russia, the rules for the exercise of the right to ask for condescension are established by the Regulation “On the Procedure for Considering applications for pardon”, which was approved by the Presidential Decree of December 28, 2001 No. 1500 (with some adopted changes in recent years). According to this document, the petition for pardon must be submitted by the convict in writing to the administration of the institution of execution of the penalty. Further, it enters the regional pardon commission, which in the established time period is obliged to prepare recommendations on the appropriateness of pardon in each particular case. Such a procedure is extremely bureaucratic and potentially corruption. Any instance from a long chain of involved departments that transmit to each other can be blocked by a petition. That is, contrary to Part 2 of Art. 55 of the Constitution of the Russian Federation, it is a clear obstacle to the normal implementation of constitutional law. Видимо, именно поэтому судья Конституционного суда в отставке Тамара Морщакова убеждена , что указ Путина неконституционен. Правда, есть в этом указе одна важная оговорка: «При рассмотрении ходатайства о помиловании принимаются во внимание мнения потерпевших или их родственников относительно возможности помилования (п «и» ст. 20).

Надо отметить, что при Владимире Путине число помилований в России резко сократилось. Если в 2000 году были помилованы 13 тысяч человек (рассмотрение их дел шло еще при Ельцине), то в 2003 году — всего 187 человек, в 2004-м — 72 человека, в 2005-м — 42, в 2006-м — девять человек, а в 2007-м — ни одного. В 2009 году сообщалось о 28 помилованных. С 2012 по 2016 год Путин помиловал 62 человека, а вот президент Обама за этот же срок — 190 человек. Еще в 2006 году уполномоченный по правам человека в Российской Федерации Владимир Лукин сделал крайне неутешительный вывод : сегодня институт помилования в России девальвируется.

Всё изменилось с началом российской агрессии в Украине и с набором на войну осужденных.

Институт помилования возродился как феникс из пепла. Только стал он абсолютно непонятным и непрозрачным.

Издание «Агентство» пишет, что осужденные получают помилование секретными указами Путина вне зависимости от сроков наказания и тяжести преступления. По данным журналиста-расследователя Андрея Захарова, указы о помиловании вообще подписываются Путиным заранее. Похоже, что мнения потерпевших или их родственников относительно возможности помилования во внимание не принимаются вовсе. По крайней мере родителей жертвы Канюса Веры Пехтелевой и детей Анны Политковской об этом никто не спрашивал, хотя были обязаны.

Ходатайствует кто-то (кто?) за героев-убийц или это участившиеся приступы милосердия главы государства? Какова процедура, если всё же это ходатайства? Почему все указы секретные? Сколько их на самом деле? И как нам со всем этим жить? На все эти вопросы ответов практически нет.

Есть всего две крошечные зацепки, в реализацию которых на практике в специфических условиях российского правосудия я не очень верю, но… Вернувшиеся с войны в Украине помилованные россияне уже совершили не менее 20 преступлений, в результате которых погибли более 27 человек. Милуя их без разбора только по основанию искупления вины кровью, президент фактически подвергает угрозам общественную безопасность и соблюдение прав и свобод граждан. Следовательно, указы о помиловании должны быть опубликованы (ст. 15 Конституции). Хотя как обжаловать неопубликование того, о существовании чего мы не знаем по причине секретности? Вторая зацепка — обжалование таких указов по процедурным основаниям при появлении информации о помиловании конкретных лиц, если мнение потерпевших не было учтено. Но и в этом случае результат более чем неочевиден. Впрочем, никогда не сдавайся!