TRANSFER OF A CONVICTED PERSON FOR EXCHANGE AS A PRISONER OF WAR: CRIMINAL LAW ASPECTS OF RELEASE FROM SERVING PUNISHMENT

Abstract

The article discloses the criminal law aspects of release from serving a punishment in connection with the adoption by the authorized body of a decision to hand over a convicted person for exchange as a prisoner of war and provides recommendations on application of specified criminal law rule in practice. It is argued that obvious defects associated with the violation of the principle of justice related to such exemption from punishment, which, among other things, manifests itself in the refusal to establish appropriate conditions for its application, are explained (to a certain extent played down) by the appropriateness of exemption from serving punishment in connection with making a decision on the transfer of the convicted person for exchange as a prisoner of war to special criminal law means, the social nature of which is determined by the war against Ukraine. It is aimed exclusively at achieving an important socially useful goal – to receive, as a result of the exchange, of persons who became prisoners of war at the aggressor state. By its very nature, exemption from serving a sentence, provided for in Art. 84-1 of the Criminal Code, has common features with a pardon, since in fact there is a pardon of persons who have committed war crimes – violations of the laws and customs of war. When applying the exemption from serving the sentence provided for in Art. 84-1 of the Criminal Code, it is recommended to take into account that it belongs to the category of binding for the court in terms of the degree of obligation; according to the presence of special duties of the convicted person after his release – to the unconditional category (the person is not subject to any requirements in connection with his release); according to legal facts with which the legislator connects exemption from punishment and its serving – to the category caused by a certain event, independent of the behavior of the person who is exempted from punishment. The basis for release from serving a punishment in connection with the decision to transfer a convicted person for exchange as a prisoner of war is the decision by the authorized body (Coordinating Headquarters for the Treatment of Prisoners of War, headed by the head of the Main Intelligence Directorate of the Ministry of Defense of Ukraine) to transfer a person for exchange as a prisoner of war. The only condition for release from serving a punishment in connection with the decision to transfer a convicted person for exchange as a prisoner of war, according to Art. 84-1 of the Criminal Code, is a written consent by the convicted person to carry out his exchange in the prisoner of war status.