DEFINITION OF CRIMINAL-LEGAL COMPENSATION IN NATIONAL AND INTERNATIONAL LAW

Native criminal law is constantly being improved in order to correspond modern state of crime and satisfy the social demand for crimes’ prevention and control. One of the actual novel was introduction of criminal-legal compensationinstitute in the law system of the Republic of Belarus. In particular, the institute has been integrated into Articles 78, 88, 88¹ of Belarusian Criminal Code. Criminal-legal compensation, as phenomenon of criminal law, allows people, who committed minor crimes, to make amends to the society voluntary.

Today criminal-legal compensation is the measure of material native, which an offender agrees to accept and shall is obliged to comply as a condition for exemption from criminal responsibility or must fulfill the application of other criminal responsibility measures. Criminal-legal compensation is a form of making amends to society. It aims to promote correction of the offender, the restoration of social justice. Criminal-legal compensation is applied only in the cases, stipulated by the Criminal Code.

In the scientific literature, there is an opinion that criminal-legal compensation is not self-functioning criminal institution, but it aims to increase the effectiveness of mechanisms, previously laid down in the Criminal Code. These mechanisms aim at criminals’ re-socialization, without isolating them from society, with repentance and confession of guilt. In particular, A. I. Lukashov defines criminal-legal compensation as “veiled form of penalties to a person who is exempt from criminal responsibility”.

It should be noted that a person pay a compensation voluntarily pursuing long-term objective not to be subjected to measures of criminal prosecution or compulsory measures of punishment. The payment of compensation is a must condition in certain cases provided by law in order to the prosecuting authority received the accused petition to release him from criminal responsibility.

Indemnification may be effected in cash or in another form. The compensation for caused damage is possible at any stage of a criminal investigation in full or in part. Reparation might otherwise be in the form of intellectual or material compensation (“paying tribute”) for non-pecuniary damage (public apology, financial compensation), providing medical or other assistance to the victim. But, such actions of the guilty as calling an ambulance for the victim, when the offender immediately fled the scene, not even trying to provide first aid to the victim, can hardly be attributed to the reparation.

In international law definitions of criminal-legal compensation institute are various: “compensation to victims of crime”, “restitution for victims of crime”, “compensation of harm caused by the offense”, “restitution” and so on. However, all of these terms correspond to the definition – reparation of the harm to the injured person. The term harm includes both material damage and non-pecuniary damage.

For example, according to Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power restitution is the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

In accordance to Article 35 of United Nations Convention against Corruption each State Party shall take such measures which may be necessary, in accordance with the principles of its native law, to ensure that entities or persons who have suffered damage as a result of any act of corruption have the right to initiate legal proceedings against those who are responsible for that damage in order to obtain compensation.

In many countries, if non-serious offenses against the individuals’ interests are committed, courts are increasingly limited to the use of compensation. As a rule, the compensation may be assigned as a primary and an additional penalty. In every country, where it is provided, punishment in the form of compensation has own specific features, which were caused considerably by the influence of local cultural, historical and legal traditions.

In some countries, criminal-legal compensation is one of the conditions of exemption from criminal responsibility. Thus, in accordance with the Criminal Code of Lithuania, one of the measures, which is appointed to the guilty, instead of punishment, is compensation or reparation for property damage. In Austria, an agreement on compensation, reached at any time before the end of the process, is the reason for exemption from punishment in cases of crimes committed by minors, and in other cases, which are punished under the law by imprisonment up to 3 years. In Sweden, Switzerland and Australia compensation to victim entails the refusal of the prosecution, i.e. it is the exemption from criminal responsibility. In the Criminal Code of Argentina the duty of guilty to pay damages prevails over all other duties, arising after the crime. Criminal Codes of such countries, such as Chinese People's Republic, the Netherlands, Malta, and Poland contain a special rule that the court at sentencing, in addition to the judgement, may order the convicted person to pay the victim a sum of money or otherwise to make amends for the harm. In the Russian Federation, reparation isn’t an unconditional duty of the guilty. Reparation to victim is carried out only if there is a court verdict. The victim can not count on compensation for harm caused by the offense, if the offender is not installed or installed, but is hiding from the investigation, and accordingly, it is not possible to bring him to justice. In France, the victim may receive the compensation for the physical harm until the moment when the offender appeared in court. In the United States of America, there is the Program of compensation for victims of crime, according to which the victim has a number of rights in pre-trial and trial proceedings. These rights are connected with the right to information about the crime, the motion of matter. The right for compensation comes after the verdict. The Program allocate such opportunities as unemployment benefits, receipt of social housing, payment of telephone and other conversations by the state, etc.

In the Criminal Code of Turkmenistan the duty to make amends for the harm, that inherently similar to the compensation, is imposed on the defendant. In England, the Criminal Justice Act 1982 (section 67) at the same time gave courts the right to sentence and to publish so-called compensation order to the victim. Since 1982, the compensation may be awarded “as the only sanction”, i.e., in fact, replace the criminal penalty. Moreover, if the convicted is not able to pay immediately a fine (as punishment), and the compensation, the latter has priority.

Restorative justice is an alternative model to the current criminal justice. Instead of the traditional punitive and rehabilitative measures, it provides a system of measures aimed at compensating the victims for harm caused by crime. Participants of X United Nations Congress on the Prevention of Crime and the Treatment of Offenders agreed that the idea behind restorative justice is to compensate caused damage, and, as much as possible, to restore in the previous state the offender and the victim.

Thus, analyzing some aspects of the establishment of rules of criminal-legal compensation by national and international law, it should be noted, that such compensation is a form of making amends to society. It is recognized at the national and international levels, that it will contribute to the correction of the offender, as well as the restoration of social justice.

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