The Human Rights Ombudsman explains the legal aspects of exemption from criminal punishment due to a change in the situation.
Article 81 of the DPR Criminal Code regulates that a person who has committed a crime of limited- or average-gravity for the first time is exempted from punishment by the court if it is established that, due to a change in the situation, this person or the crime committed by him has ceased to be socially dangerous.
The criminal law establishes a legal mechanism that allows not applying criminal-legal influence in the form of punishment, which, of course, implies negative legal consequences for the offender, that is, the legal restriction of his rights and freedoms. However, Article 81 of the CC DPR establishes the existence of certain conditions as grounds for exemption from punishment, namely:
- the gravity of the crime must be limited or average;
- the commission of a criminal offense occurs for the first time by a person;
- a change in the situation indicates the absence of public danger from the offender or the crime itself.
Let’s look at it in turn.
In accordance with Clause 2 of Art. 15 of the CC DPR, intentional and negligent acts are considered as crimes of limited- or average-gravity, for the commission of which the maximum punishment does not exceed 3 years in prison, crimes of average gravity are intentional acts for the commission of which the maximum punishment does not exceed 5 years in prison, and negligent acts, for the commission of which the maximum punishment does not exceed 3 years in prison.
If the definition of the gravity of crimes is clearly enshrined in the normative provisions of the CC DPR, then the question of the criterion a “change in the situation” always remains open, since the circumstances that caused the loss of public danger of the offender or the crime are individually determined and are subject to a thorough investigation by the justice authorities. It should be noted that the phenomena of decriminalization of a criminal offense and “change in the situation” are not identical.
In the case of decriminalization, the elements of the corpus delicti inherent in one or another act, for the commission of which there is criminal responsibility, are excluded from the Criminal Law. “Change in the situation” does not exclude the corpus delicti from criminal law norms, and, accordingly, does not abolish the fact of the unlawfulness of the punishable act, but only indicates that, due to the loss of its public danger for objective reasons, there is no need to apply punishment.
It should be borne in mind that a “change in the situation” due to real, that is, for reasons beyond the control of the guilty person, as well as in connection with the behavior of the offender, contributing to the loss of the previously arisen public danger by his actions, cannot be regarded as mitigating or aggravating circumstances. The assessment of the presence/absence of these circumstances is carried out independently.
One of the classic examples of a “change in the situation” is illegal logging. In the absence of appropriate permission, the person caused significant damage to the state. However, in the course of criminal proceedings, it was subsequently found out that the aforementioned forest plantations in the nearest future were subject to sawing down and destruction due to the construction of an object of state importance necessary to meet the needs of the population. In this case, there is corpus delicti, but its social danger is lost by the circumstances themselves.
Another example of a “change in the situation” may be the repeated non-payment of funds for the maintenance of children. On the one hand, the norms of the criminal law were violated; on the other hand, the guilty person not only reimbursed all the funds due, but also paid the sums due repeatedly. It can be argued that in this case there are no circumstances that neutralize the public danger, but only there are facts of reimbursement of funds by the offender, which he had to pay without criminal prosecution. Of course, it is impossible to exclude situations when untimely repeated non-payment of funds for the maintenance of children could coincide with the reaching of a child the age of majority after a short period of time. At the same time, the financial situation of mothers and children is more than satisfactory. The reimbursement of the money coincided with the actual reconciliation of the former spouses, who decided to revive the family again. Thus, it is quite possible to assert that the person brought to justice has ceased to be socially dangerous.
Based on the abovementioned, release from criminal punishment due to a change in the situation depends on a range of factors that directly indicate that the court’s decision not to expose a person to influence will be justified and will not disregard the presence of harm from a previously arisen public danger to specific individuals, society and the state as a whole. In turn, a person released from punishment will be considered not convicted on the basis of Clause 2 of Article 87 of the Criminal Code of the DPR.