The application by courts of the consequences of release by amnesty to a person who was not amnestied

This article studies the court practice of recognition of persons as subject to amnesty and applying to them the consequences of release under amnesty before it occurs, for which the author summarises court practice, the practice of declaring an amnesty and analyses current legislation. The practice under analysis consists of court decisions, which, when deciding on punishment, do not take into account the convictions of the person on the grounds that the person should be granted amnesty, without being released under amnesty. The actual release under amnesty, as a rule, does not occur. The variety of courts that made such decisions suggests that this practice exceeds the personal position of a certain judge, a certain court, but appears to be a general phenomenon for the country. The article emphasises the incorrectness of such practices, since the problem is solved by a body not competent to do it in a form not provided for by the current regulation. Problems caused by this practice include the uncertain position of the person in relation to whom the decision was made, incorrect influence of other bodies, the risk of different application of the same act to the same person. The author points to the connection of this practice with the idea of indisputable need for release under amnesty, the desire of the court to protect interests of the person and resolve the issue as it seems right and fair. The values protected by this practice are correlated with its real results, as well as the values this practice encroaches on (the interests of the competent authority; the rules delimiting the powers to apply amnesty; the rule of law). The author concludes that this practice cannot be justified by the motives that guide courts when making its decisions.

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