Article 28 of the Code of Criminal Procedure of the Russian Federation. Termination of criminal prosecution due to active repentance (current version)

ST 75 of the Criminal Code of the Russian Federation.

1. A person who has committed a crime of minor or medium gravity for the first time may be released from criminal liability if, after committing the crime, he voluntarily confessed, contributed to the disclosure and investigation of this crime, compensated for damage or otherwise made amends for the harm caused by this crime, and as a result of active repentance has ceased to be socially dangerous.

2. A person who has committed a crime of another category is released from criminal liability only in cases specifically provided for by the relevant articles of the Special Part of this Code.

What does judicial practice show under this article?

The principle of active probing in criminal proceedings can be considered in the situation of citizen Ivanenko, who was a member of an organized criminal group.
A group of people took a hostage, the son of an influential businessman, to obtain a ransom. In the gang, Ivanenko acted as an accomplice. When he saw how his comrades were tormenting the hostage, he began to regret the crime he had committed and, secretly from them, released the boy, and he himself went to the police to surrender.

Investigators accepted the confession and drew up the relevant documents. During the proceedings, Ivanenko constantly assisted the investigation, and also betrayed all his comrades in criminal activities.

Such actions were perceived by the court as sincere repentance, and the attacker was released from punishment, since his role in the crime was insignificant. In addition, this was the first time he had been prosecuted for violating the law and the prosecution (the son of a businessman and father) had no complaints against him.

What decisions are most often made under Article 28 of the Code of Criminal Procedure?

Active repentance has been debated for decades. Some legal scholars believe that the active actions of the perpetrator do not always indicate his regret. Sometimes compensation for damage and assistance to the investigation is carried out by the criminal not out of repentance, but only out of fear of the upcoming punishment.

Actions that are carried out under the influence of this feeling can hardly be called regret; accordingly, they are unlikely to lead to correction.

Although the regulations state that each of the active actions described in Article 75 of the Criminal Code of the Russian Federation may be grounds for a reduced sentence, the judge determines active repentance if there are at least two grounds.

That is, if there is only a confession, then this will soften the sentence, but when there was a confession, full compensation for damage and making amends for the moral damage received from the crime, then this really looks like regret.

The imperfection of the rules governing release from liability due to repentance, in most cases leads to an incorrect interpretation of the actions of the offender. And those who are truly sorry are deprived of their freedom, and those who are not concerned about the condition of the victim are released.

Criminal legal meaning of repentance

In Russian criminal law, dative repentance has subjective and objective sides:

• the subjective side consists in the presence of certain feelings and emotions in a person, which he expresses in active, useful actions;
• the objective side is based on the actions themselves, on the method of their implementation and type.

Release of persons from liability due to repentance is a practical application of the principles of justice, objectivity, humanism and comprehensiveness of the work of law enforcement agencies.

The socially useful behavior of the subject after committing a crime in itself indicates that the perpetrator has formed a negative attitude towards the committed act. And to correct it, isolation is not needed, just another chance at a normal life in society is enough.

The essence of active repentance is that a person regrets not only verbally, but also does everything to minimize the damage from his illegal act. The social and legal significance of the norm described in Article 28 of the Code of Criminal Procedure is simply enormous. So far, it has not been fully studied and is subject to careful research and analysis as one of the most effective mechanisms for correcting a criminal and restoring justice.

Conditions for release from criminal liability due to active repentance

Exemption from criminal liability due to active repentance is possible only if the following conditions are met.

1) The norm of Article 75 of the Criminal Code of the Russian Federation applies only to a person who has committed one or more crimes for the first time , for none of which he was previously convicted or when the acts previously committed by him do not entail legal consequences;

2) the crimes committed must be classified as minor and moderate (parts 2 and 3 of Article 15 of the Criminal Code of the Russian Federation);

3) after committing a crime, the perpetrator must show active repentance , i.e. take any active positive actions, an approximate list of which is given in Art. 75 of the Criminal Code of the Russian Federation. These include:

• confession. A confession should be understood as a voluntary statement by a person about a crime committed by him or with his participation, made in writing or orally. Voluntary appearance means a conscious active action of a person who has committed a crime associated with contacting the police, prosecutor's office or court with a statement about what he has done. A statement about a crime made by a person in connection with his arrest on suspicion of committing this crime cannot be recognized as voluntary. Confession must not be made under the influence of coercion or a forced situation, when sufficient evidence of his guilt has been collected against the perpetrator.
• Contributing to the solution of a crime means taking actions aimed at the full disclosure and investigation of the crime, including the discovery of valuables obtained as a result of the crime. Facilitation will be, for example, an indication in the confession of persons who took part in the commission of the crime together with the perpetrator, the location of the instruments and weapons of the crime, stolen property, a corpse and other actions that are important for the complete, objective and prompt disclosure of the crime. The condition for exemption from criminal liability in the form of contributing to the disclosure and investigation of this crime should be considered fulfilled if the person contributed to the disclosure and investigation of the crime committed with his participation;
• voluntary compensation for damage caused. Damage is property damage that can be compensated in kind (in particular, the provision of property to replace lost property, repair or correction of damaged property), in monetary form (in particular, compensation for the cost of lost or damaged property, treatment costs), etc. . Compensation for damage can be made not only by the person who committed the crime, but also at his request by other persons.
• otherwise making amends for harm caused as a result of the crime. Under the amends for the purposes of Part 1 of Art. 75 of the Criminal Code of the Russian Federation should be understood as property, including monetary, compensation for moral damage, providing any assistance to the victim, apologizing for an insult, refuting false information that discredits the honor and dignity of another person or undermines his reputation, etc.

Only the combination of the three conditions considered justifies raising the issue of exemption from criminal liability in accordance with Art. 75 of the Criminal Code of the Russian Federation.

Committing a crime for the first time

The above conditions apply only to a person who for the first time .

In paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 19, it is explained that the person who has committed a crime for the first time should be considered, in particular, the following:

• a) who has committed one or more crimes (regardless of their classification under one article, part of an article or several articles of the Criminal Code of the Russian Federation), for none of which he has been previously convicted;
• b) the previous sentence in respect of which at the time of commission of the new crime did not enter into legal force;
• c) a previous sentence in respect of which at the time of the commission of a new crime came into legal force, but at the time of its commission one of the circumstances had occurred that annulled the legal consequences of bringing a person to criminal responsibility (for example, the person was released from serving a sentence due to the expiration of the statute of limitations execution of a previous conviction, expungement or expungement of a criminal record);
• d) the previous sentence in respect of which came into force, but at the time of the trial the criminality of the act for which the person was convicted was eliminated;
• e) who was previously exempt from criminal liability.

The crimes committed must be classified as minor or moderate in severity

The above conditions apply only to a person who has committed a crime of minor or moderate gravity (for categories of crimes, see Article 15 of the Criminal Code of the Russian Federation with comments).

After committing a crime, the perpetrator must show active repentance

Another condition with which the law connects the possibility of exemption from criminal liability is the positive active post-criminal behavior of the person who committed the crime, which in fact indicates active repentance.

Within the meaning of Part 1 of Article 75 of the Criminal Code of the Russian Federation, exemption from criminal liability in connection with active repentance is possible provided that all the actions listed therein are performed or those of them that, taking into account specific circumstances, the person had an objective opportunity to commit (for example, detention at the scene of a crime is objectively excludes the possibility of reporting to law enforcement agencies about a crime committed, however, the person’s subsequent assistance in solving and investigating a crime, compensation for damage and (or) making amends for harm in another way may indicate his active repentance) (clause 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27 June 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability”).

A person’s admission of his guilt without performing the actions provided for by this norm does not constitute active repentance.

The type of exemption from criminal liability under consideration is optional: it is not an obligation, but a right of the law enforcement officer. A decision on exemption from criminal liability will be made if the investigator or inquiry officer comes to the conclusion that it is inappropriate to bring to criminal responsibility a person who, after committing a crime, confirmed his repentance through positive actions and thereby lost his danger to society.

Classification

Active repentance is divided into the following types:

1. Voluntary surrender.
2. Assisting law enforcement agencies in solving crimes.
3. Compensation for damage that arose as a result of the illegal actions of the criminal.

Damage can be compensated in the following ways:

1. By paying monetary compensation.
2. Return of stolen items.
3. Payment of the victim’s material costs for treatment, rehabilitation, as well as payment of moral damage.
4. By restoring the victim's damaged property.
5. Through a public apology if the crime is libel or spreading false information.

From a motivational point of view, repentance can be of two types:

1. Truly voluntary. The criminal truly realized the inadmissibility of his actions and repented.
2. Committed under pressure, manipulation by the investigative bodies, when there is not enough evidence.

Thus, the offender who voluntarily confesses to his actions benefits himself and society.

The benefit is that the investigation is freed from various procedures (inquiry, investigative experiment, examination), which significantly reduces the time required to investigate a crime.

There is also no need to re-educate a repentant citizen in correctional institutions, which means that money will be saved.

Find out about the conditions for terminating a criminal case in connection with the reconciliation of the parties from our article.

Commentary to Art. 75 of the Criminal Code of the Russian Federation

Exemption from criminal liability means a decision expressed in an official act of a competent state body to release a person who has committed a crime from the obligation to be convicted by a court and undergo state coercive measures. In this case, criminal liability does not find its realization either in the public condemnation of the perpetrator, or in punishment, or in other measures of a criminal legal nature.

The social significance of the institution of exemption from criminal liability is that the state places trust in the person who committed the crime and counts on his law-abiding behavior in the future. Release from criminal liability is not the rehabilitation of the accused or suspect or their forgiveness (with the exception of an amnesty). It rather testifies to the provision of leniency on the part of the state to the guilty person, given the possibility of achieving the goals of criminal legislation without convicting the guilty person.

The general basis for releasing a person who has committed a crime from criminal liability is the inappropriateness of bringing him to court and applying other measures of a criminal legal nature to him. This general basis is specified in relation to certain types of exemption from criminal liability. But this basis can only take place under certain conditions. Among them it is necessary to highlight the following.

First. As a general rule, exemption from criminal liability is possible only if a crime is committed for the first time of minor or moderate gravity. These indicators may, if there are other grounds, indicate that both the act and the personality of the perpetrator do not pose a great danger to society. Second. As a general rule, a person who has committed a crime must, in one form or another, established by law, make amends for his guilt. Third. Exemption from criminal liability, regardless of the category of crime, can only occur due to the expiration of the statute of limitations. Fourth. Exemption from criminal liability is possible due to an act of amnesty. However, amnesty in the Criminal Code is not classified as a basis for exemption from criminal liability, but is considered in a separate chapter, since it applies to an indefinitely large circle of persons who meet the conditions of the amnesty.

Exemption from criminal liability on the grounds provided for by the Criminal Code of the Russian Federation does not mean declaring a person innocent of committing a crime. This also does not mean that the crime committed in accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation is insignificant and, therefore, there is no corpus delicti. Exemption from criminal liability is also not related to the presence of circumstances excluding the criminality of the act. This institution applies to persons who have committed a crime, but under such circumstances and conditions when there is the possibility of non-application of measures of criminal repression.

A procedural form of exemption from criminal liability is a resolution of the inquirer with the consent of the prosecutor, as well as an investigator with the consent of the head of the investigative body or a judge, or a court ruling to terminate a criminal case, if one has been initiated, or a resolution of the inquiry body, the inquirer or investigator to refuse to initiate a criminal case. case, if the decision to release from criminal liability was made at the stage of pre-investigation verification of the circumstances of the crime. Moreover, in some situations, the above authorities have the right to apply the institution of exemption from criminal liability (for example, Article 75 of the Criminal Code of the Russian Federation), in other cases the application of this institution is the responsibility of these authorities (for example, Article 78 of the Criminal Code of the Russian Federation).

The Criminal Code of the Russian Federation knows the following types of exemption from criminal liability:

1) in connection with active repentance (Article 75);

2) in connection with reconciliation with the victim (Article 76);

3) due to the expiration of the statute of limitations (Article 78).

All of the above types of exemption from criminal liability are unconditional: the exemption is final and cannot subsequently be canceled for any reason.

The commented article regulates the issues of exemption from criminal liability in connection with active repentance.

In accordance with Part 1 of Art. 75 of the Criminal Code of the Russian Federation, a person who has committed a crime of minor or moderate gravity for the first time may be released from criminal liability if, after committing the crime, he voluntarily confessed, contributed to the detection of the crime, compensated for the damage caused or otherwise made amends for the damage caused as a result of the crime, and as a result of active repentance has ceased to be socially dangerous.

Thus, this norm defines the conditions under which a person can be released from criminal liability on the grounds in question.

First of all, such a condition is the fact of committing a crime for the first time. This means that the person has not previously committed a crime at all or has been released from criminal liability for a crime committed or was previously convicted, but the criminal record was withdrawn or expunged in the manner prescribed by law and, therefore, there are no legal consequences of the criminal record.

As noted in paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation,” a person who has committed one or more crimes for no reason should be considered to have committed a crime of minor or medium gravity for the first time. of which he has not previously been convicted, or when the previous sentence against him has not entered into legal force.

A person cannot be released from criminal liability due to active repentance if he was previously convicted of any crime and has a criminal record. It does not matter what type and amount of punishment it was sentenced to (fine, correctional labor, suspended sentence, imprisonment).

In practice, the question also arises of whether a person can be considered to have committed a crime for the first time if he was previously released from criminal liability on non-rehabilitative grounds, since in this case the crime objectively committed is not the first. Here it should be noted that this is not the first time that recognizing a person as having committed a crime is associated with certain legal consequences. However, upon termination of a criminal case, the person is considered not to have a criminal record and, when deciding on the possibility of terminating a new criminal case in connection with reconciliation with the victim, must be recognized as having committed a crime for the first time.

Further, exemption from criminal liability due to active repentance is possible only if the crime committed falls into the category of minor or moderate gravity. The commission of a crime of another category excludes exemption from criminal liability on the basis of Part 1 of Art. 75 of the Criminal Code of the Russian Federation.

The next mandatory condition with which the law connects the possibility of exemption from criminal liability is the positive post-criminal behavior of the perpetrator. If the above two conditions are met, release can only take place when the offender has committed one or more actions specified in the law, namely: confessed, contributed to the discovery of the crime, compensated for the damage caused, or otherwise made amends for the harm caused as a result of the crime.

Confession must be voluntary, which means a conscious active action of the person who committed the crime associated with contacting the police, the prosecutor's office or the court with a statement about what he has done. Confession must not be made under the influence of coercion or a forced situation, when sufficient evidence of his guilt has been collected against the perpetrator. In addition, surrender will be voluntary when the investigative authorities knew nothing about the person who committed the crime or about the crime itself. At the same time, it should be borne in mind that the law does not connect the presence of voluntariness with the motive of a person’s behavior, as well as with the circumstances that preceded the confession or influenced the decision made.

To terminate a criminal case due to active repentance, it is necessary that the person who committed the crime voluntarily confess and help solve the crime. In cases where any of the conditions are absent and instead of confession and assistance in solving a crime, for example, only sincere repentance takes place, the application of Art. 28 of the Code of Criminal Procedure of the Russian Federation is impossible, since the circumstances specified in the law, which together allow us to draw a conclusion about active repentance, will only be circumstances mitigating the punishment.

Contributing to the solution of a crime means taking actions aimed at fully solving the crime, including the discovery of valuables obtained as a result of the crime. Facilitation will be, for example, an indication in the confession of persons who took part in the commission of the crime together with the perpetrator, the location of the instruments and weapons of the crime, stolen property, a corpse and other actions that are important for the complete, objective and prompt disclosure of the crime.

Compensation for damage caused and making amends for harm can take place both in the form of payment of an agreed sum of money, and in eliminating damage in kind (transferring to the victim other equivalent property instead of damaged or destroyed, repairing damaged property, clothing, vehicles, etc.). It is possible to make amends for moral damage, to make a public apology to the offended person, to refute the data that served as the basis for slander, etc.

To be released from criminal liability on the grounds under consideration, it is important that all the actions of the perpetrator after the commission of the crime give the court the opportunity to come to the conclusion that the person has lost the sign of public danger.

If all the conditions specified in Part 1 of Art. 75 of the Criminal Code of the Russian Federation, the competent authorities have the right, but are not obliged, to decide to release the perpetrator from criminal liability.

Part 2 of Art. 75 of the Criminal Code of the Russian Federation establishes the possibility of applying exemption from criminal liability in connection with active repentance and in relation to persons who have committed serious and especially serious crimes. But such release is possible only in cases specifically provided for by the notes to the relevant articles of the Special Part of the Criminal Code of the Russian Federation (kidnapping - Art. 126 of the Criminal Code of the Russian Federation; commercial bribery - Art. 204 of the Criminal Code of the Russian Federation; terrorist act - Art. 205 of the Criminal Code of the Russian Federation; hostage taking - Art. 206 of the Criminal Code of the Russian Federation; organization of an illegal armed group or participation in it - Article 208 of the Criminal Code of the Russian Federation, etc.).

Special article and active repentance

In the Russian Federation, there is a special article for crimes of a criminal nature, in the commission of which the offender can count on the application of Article 28. This is stated in this article in Part 2.

To do this, the criminal must, at the time of committing the crime, realize his actions and renounce his intentional criminal acts. This will be expressed by canceling the crime and contacting law enforcement agencies with further cooperation with them.

The article will be taken into account in the following criminal cases:

• if after kidnapping a person the culprit releases him;
• if human trafficking was committed, but the criminal terminated the case and released the victims;
• when giving a bribe, you must appear and report this to law enforcement agencies, cooperate with them if necessary, and after this the culprit can be released from criminal liability;
• when participating in terrorist activities, no matter whether financially or through his actions, if during the preparation process the culprit refuses to commit a crime and reports all the plans of the terrorists known to him, then the cessation of criminal liability may occur;
• when taking hostages, there is also the possibility of release from liability if the offender releases the hostage;
• if a person is the owner of weapons, ammunition or explosives or devices, he must hand over these items to the police;
• The articles for the sale and distribution of drugs are quite serious, so the defendant faces fairly long sentences, but it is possible to mitigate his fate and be released from the court verdict. This possibility arises if the culprit informs law enforcement agencies about the place of drug production or gives away the amount of the drug that he has;
• if a person participated in international espionage or was involved in crimes that threaten the Russian Federation, then the punishment can be terminated if he reports this crime;
• exemption from criminal liability can be applied if a person participated in extremist or banned religious groups, but voluntarily ceases participation in them;
• There will be no liability in the event of false testimony made by either an individual or a professional person, if the confession of giving false information occurs earlier than the court makes a decision.

At the same time, the rehabilitation of a citizen under Art. 28 does not relieve a person from other liability that arose in the course of certain circumstances. Example: during a bank robbery, a hostage was taken and was inflicted with bodily harm; if the criminal released the hostage and helped the investigation in solving the case, then responsibility for taking the hostage will not arise; on this basis, the citizen will be able to be rehabilitated. But you will still have to bear responsibility for causing physical harm.

Prerequisites

In the new edition of Art. 75 of the Criminal Code of the Russian Federation establishes that exemption from liability is possible if a citizen:

• admitted guilt (turned himself in);
• assists authorized bodies in solving the act;
• ready to compensate for the damage he caused.

However, a mandatory condition must be met. Exemption from punishment is allowed if the person has committed a crime of average or minor gravity for the first time.

Removal of responsibility from the perpetrator for acts of other categories is possible in cases expressly provided for in the relevant provisions of the Criminal Code.

Exemption for tax crimes

This article is actively applied to persons who have committed economic crimes. This is due to the fact that these crimes are not considered socially dangerous to the same extent as, for example, murder, but still belong to the category of criminal, where there is also a division depending on the amount.

Economic crimes for which the application of this article is possible include the following:

1. Working as an entrepreneur without paying taxes.
2. Illegal banking activities.
3. Using someone else's trademark or logo.
4. Evasion of customs duties.
5. Hiding taxes.
6. Other crimes.

Basically, the application of the article on economic crimes occurs in the area of ​​Art. 146, when people do not pay taxes on goods sold.

If this act occurs for the first time, has a small amount, and the accused fully repays his debt, the application of Chapter 28 is quite acceptable. However, the tax office may impose a fine under the Code of Administrative Offenses for non-payment of taxes.

Controversial issues

According to a number of lawyers, with a literal interpretation of the rules of Part 2 of the 75th Article, one gets the feeling that the solution to the issue of exonerating the perpetrator of responsibility depends on the discretion of the court.

Meanwhile, the conditions of release, enshrined in the note of the relevant norm of the Special Part, are imperative in content. Therefore, if there are grounds, the court must relieve the person of responsibility, regardless of the category of the act, recidivism, absence/presence of positive actions after the crime, as stated in Part 1 of the 75th Article. Judicial practice is guided by precisely this approach. In these situations, release occurs not due to the elimination/reduction of the danger of the perpetrator to society, but due to the need to ensure the protection of more significant objects of protection.

What does judicial practice show under this article?

Judicial practice under the article on the closure of criminal prosecution is very diverse. The principle of implementation of this procedural procedure can be considered using the example of causing grievous bodily harm in necessary self-defense.

Citizen Petrov, in order to rob a woman in a dark alley, threatened her with a knife and tried to snatch her bag. In self-defense, the woman grabbed a nearby stick and hit the attacker with all her might. The stick turned out to be an aluminum rod, which broke the attacker’s jaw. When he fell, the criminal hit his head hard, as a result of which he received a number of moderate injuries.

A criminal case was opened against the woman and criminal prosecution was initiated, but the case was closed because there was no corpus delicti in the woman’s actions. The lady did not intend to beat the attacker, but took advantage of her legal right to self-defense.

What decisions can be made under Article 212 of the Code of Criminal Procedure?

The case is closed solely on the grounds described in Article 212 of the Code of Criminal Procedure. Sometimes the investigator has a number of difficulties in terminating proceedings. It is known that a case can be reclassified during the pre-trial investigation; accordingly, cases that are subject to closure on clear grounds are reclassified, and people who should have avoided a criminal record are brought to justice.

For example, when harm is caused to a criminal during detention, people who wanted to curry favor with the state are often brought to justice. The investigator recognizes their actions as disproportionate to the damage caused, since he needs to submit a certain number of cases per month for reporting.

Unfortunately, there are unscrupulous investigators and prosecutors working in the country who turn a blind eye to evidence of the guilt of criminals and subject them to forced treatment or close cases on one of the appropriate grounds. At the same time, honest, conscientious citizens are held accountable.

An equally important problem is the rehabilitation of the accused, which should entail compensation for moral and material damage. In most cases, compensation in our country is present only on paper; the state is in no hurry to “apologize” to its citizen. . In fact, after the acquittal comes into force or the proceedings are closed, the victim can go to court with a demand for compensation for the damage described in Article 135 of the Code of Criminal Procedure of the Russian Federation

In fact, after the acquittal comes into force or the proceedings are closed, the victim can go to court with a demand for compensation for the damage described in Article 135 of the Code of Criminal Procedure of the Russian Federation.

Other grounds for termination and prosecution

In addition to the grounds for termination of proceedings listed in Article 212 of the Code of Criminal Procedure, legal practice notes other, more rare cases, the preconditions for which are grounds for releasing a person from liability. One of these grounds is the decriminalization of crimes. The Criminal Code is rarely edited, but precedents still exist. If a person is brought to justice under a certain article that is decriminalized, the event ceases to be prohibited, and accordingly, the case must be closed at any stage of the proceedings.

Criminal proceedings can be closed if a presidential pardon takes place. This is also quite a rare occurrence. Unlike an amnesty, it applies exclusively to one accused person who has submitted a petition to the head of state.

We should also not forget about the presumption of innocence. Any doubt about a person's guilt should be considered in his favor. If there are shortcomings and unconfirmed facts in the case, it is prohibited to bring a person to criminal prosecution

If there are several grounds for termination of persecution, the one that will entail the most significant consequences is taken into account.

For example, if the statute of limitations has expired and an amnesty takes place, the case is closed upon expiration of the deadline; if there is no corpus delicti in the actions and it is established that the person was not involved in the crime, the proceedings are closed on the latter basis.

Comments

The comments to Article 28 say that active repentance can be determined by signs of voluntary expression of will.

Briefly, to determine repentance, the offender must voluntarily:

• make a confession;
• cooperate with the investigation;
• compensate for damage of any nature incurred during the crime.

If these moments were committed independently by a citizen, without outside pressure, blackmail or threats, then this Chapter. 28 will apply. But at the same time, the culprit himself may subsequently object to its use. In this case, the court makes a sentence without taking into account this law.

They separately clarify how compensation for moral and material damage should be made. It is usually assumed that the culprit will compensate for the damage by paying the injured party a certain financial amount. But, according to statistics, along with money, a criminal can restore destroyed objects by repairing them or buying new ones; equally, other assistance is provided to the victim if he agrees to such help.

The applicability of the article must be checked by the prosecutor. To do this, he determines whether the criminal’s guilt has been proven in the procedural proceedings, and the prosecutor must also check whether there are grounds in the case to believe that active repentance has occurred.

If these grounds are present in a criminal case, the prosecutor submits a petition to the court, which states that he does not object and considers it correct to release the culprit from criminal punishment.

Consultations and comments from lawyers

Although Chapter 28 cases are not uncommon, it is best to hire an attorney who can understand the full scope of the case beforehand.

In addition, with the help of a lawyer, it is possible to correctly draw up evidence indicating that the offender has actively repented, this could be:

• a receipt for receipt of money for material and moral compensation;
• a petition from the injured party for reconciliation.

Thus, the culprit will be able to avoid criminal punishment, as well as the unpleasant consequences that this punishment brings. However, you should not commit illegal acts in the future, since this chapter can only be used once.

Arbitrage practice

Finding judicial practice under this article is not a big problem, since both lawyers and prosecutors often use it. In the Russian Federation, this article applies to both economic crimes and criminal ones.

An example of the functionality of this chapter on a criminal basis could be as follows:

Gr. Sidorenko committed a crime under Art. 158, namely the theft of funds from the house of gr. Akulova, with whom the culprit worked for a short time at the same enterprise. The victim herself reported the crime. Sidorenko, since she noticed the loss of funds on the same day. When contacting law enforcement agencies, the victim immediately pointed to gr. Akulov, during whose visit the culprit immediately confessed to the crime.

During the investigation, Akulova provided all possible assistance, namely:

1. Compensated for material damage incurred.
2. Compensated for moral damages determined by the parties by agreement.
3. She apologized.

During the immediate trial, the accused filed a motion to apply Article 28, since she had met all the conditions for such a possibility. The court granted this petition, since the principle of the concept of active repentance of the defendant was fulfilled. In addition, this crime was committed by citizen Akulova for the first time; she had no previous convictions, and the crime belongs to a small category of gravity. Therefore gr. Akulova was released from her recognizance in the courtroom.

Comments on Article 212 of the Code of Criminal Procedure

The Code of Criminal Procedure of the Russian Federation regulates a certain procedural procedure for closing criminal proceedings and prosecution. To a greater extent, the actions concern the competent official (investigator, prosecutor) and the accused, his lawyer. After the indictment has been drawn up, it is sent to the prosecutor, who, having examined its contents, sends the case to court for trial on the merits. During the trial, the judge closes the proceedings and pronounces a specific sentence.

The second option for completing criminal proceedings and prosecution would be to issue a decision to terminate proceedings at the stage of pre-trial investigation. Sometimes a case at the pre-trial investigation stage can be closed by a decision to send the accused for compulsory medical treatment.

In the case of a group crime in which one of the suspects is a minor, the prosecution against him is stopped and he becomes a witness in the case, and the remaining adult participants are held accountable on a general basis.

Whatever the form in which the termination of proceedings and prosecution is carried out, the investigator, interrogating officer and prosecutor must have a clear conviction in the completeness of the collected evidence, the existence of a crime and the guilt (innocence) of a particular person.

At the end of the prosecution and completion of the criminal case, all materials are subject to numbering, inventory and filing. Copies of decisions on the initiation and closure of the case, as well as on the selection of a preventive measure and the sentence imposed, are stored in the court office, and the remaining materials are transferred to storage in the archive.

Committing an act for the first time

Explanations on this issue were given by the Plenum of the Supreme Court in Resolution No. 2 of 2007.

A person who has committed a crime of average gravity (or minor gravity) for the first time is recognized as a citizen involved in one or more offenses, for none of which he has previously been convicted, or the sentence for them has not yet entered into force. This category also includes persons with an expunged/expunged criminal record for previously committed acts.

If a citizen who has no criminal record has committed 2 or more acts of moderate/minor gravity specified in one or more articles, the rules of Part 1 of Art. 75 of the Criminal Code.

A person who has committed an offense for the first time is also considered to be a person who was previously brought to justice, but due to non-rehabilitating circumstances, the case against him was closed.

What crimes can this article apply to?

According to the collection of laws, Article 28 of the Code of Criminal Procedure can be applied to a defendant if the crime of which the person is accused has:

• light qualification;
• average degree.

If a person’s offense has a short sentence, little harm to others, then this offense will be classified as light. According to the explanation of the code, all crimes are classified as minor cases if the duration of punishment does not exceed 3 years.

The category of medium severity includes cases with a possible punishment of up to 5 years; these cases include planned criminal acts. And if a person is punished for inaction, then those crimes are considered to be of medium severity for which the maximum sentence for which does not exceed three years, although they will be classified as of medium severity.

Active repentance

The meaning of this article is based on the fact that the culprit himself admits guilt, which implies repentance, the offender understands the wrongness of his actions, and by his behavior he shows that he wants to change. The use of active repentance as a basis for terminating a criminal case can be carried out in order to comply with the principle of humanity operating in the Russian collection of laws.

Repentance is expressed in the following moments produced by the attacker:

1. Self-recognition.
2. Work with the investigation is on a voluntary basis.
3. Repairing the damage caused.
4. Elimination of moral damage.

By law, active recognition is meant if the attacker has fulfilled all or part of these parameters. Arriving at a police department or other law enforcement agency to confess assumes that the person independently contacted law enforcement agencies with a statement about committing a crime. From this message, law enforcement agencies must understand what the person did and how.

After receiving information about the commission of a crime, investigative actions begin to identify the criminal, all the circumstances of the case are revealed, and the injured party is determined. During this period, the culprit can also express repentance by helping the investigative authorities.

To do this, the accused must:

• talk about what he participated in;
• show the crime scene, weapon;
• report other participants or circumstances that may be relevant.

Making amends for the financial damage caused involves paying the injured party financial resources. To do this, it is necessary that the injured party agrees to eliminate the financial consequences and accepts them.

Usually, a settlement agreement is concluded between the injured party and the culprit, the payment of funds occurs in the amount agreed upon by both parties, and the injured party subsequently does not raise objections to the application of this article and wants to stop criminal prosecutions against the culprit.

It is traditionally believed that the application of the article is possible only if all conditions are met, indicating that the culprit has realized his unacceptable attitude towards the injured party and has repented in this regard. A criminal can first commit a crime, hide it, and only when the investigation becomes aware of this fact can the criminal appear before the investigative authorities. This should be expressed in assistance to the investigation, as well as in materially making amends for one’s guilt. In such a situation, you can count on the use of an article where you can reconcile with the injured party and not bear your punishment.

The difference between voluntary renunciation and active repentance

A citizen, of his own free will, can stop preparations for a crime or actions/inactions aimed at committing it if he realizes the possibility of completing what he started. This behavior is called voluntary refusal of encroachment. It is possible only during the preparation or attempt to commit a crime.

One of the main signs of refusal is voluntariness. It must be done of one's own free will. In this case, it does not matter on whose initiative the person made the corresponding decision. If a citizen refuses to commit an assault due to reasons that arose against his will, then this refusal is not voluntary.

The motives behind a person's decision may be different. They do not affect the recognition of voluntary refusal

It is important to note that a person’s decision to stop preparing a crime is irrevocable and final. At the same time, the subject understands that he has the opportunity to finish what he started

The difference from active repentance is as follows. The decision not to commit a crime can only be made at the stage of preparation or attempt. Active repentance occurs after the offense has been committed. It can act as a mitigating circumstance or a basis for removing punishment from a citizen. Voluntary refusal is considered a condition for non-involvement of a citizen in proceedings as an accused/suspect. In this case, no crime has been committed; therefore, there is no evidence. With active repentance, all the elements of a criminal offense are present.

Other categories of encroachments

According to Part 2 of Article 75, exemption from liability is possible upon active repentance of persons who have committed serious/especially serious acts, if this is established by the notes of the relevant norms of the Code. In this case, of course, the rules of Part 1 must be observed.

Active repentance in such situations is expressed in:

• reporting an assault;
• voluntary release of a captured person;
• stopping illegal actions;
• warning about crimes being prepared/committed at the current time.

conclusions

Release due to active repentance is possible if two groups of conditions are met. The first includes circumstances indicating the degree of danger and the nature of the crime, as well as personality characteristics. These include committing an act for the first time, and also in the second group there are conditions indicating the degree of danger only to the individual. These include confession, assistance in solving a crime, compensation or reparation of harm. All these actions must be performed voluntarily. Moreover, the first group of conditions is realized in crime, and the second - in positive post-criminal behavior.

Institute specifics

According to some lawyers, incentive norms in practice are designed to reduce the material and procedural costs that occur during the disclosure and investigation of acts. Application of the provisions of Art. 75 of the Criminal Code presupposes the conclusion of some kind of agreement with the perpetrator. In this case, the real repentance of the person is not particularly important.

It is worth saying that in the legislation of a number of CIS countries that provide for this institution, the wording does not indicate the subjective aspect, i.e., the person’s real repentance.

The presence of such a motive cannot be determined, including indirectly and from a confession. The fact is that it can be carried out for completely different reasons. For example, the guilty person appears voluntarily because he is indifferent to his fate, seeks to deceive the investigation, etc.

Meanwhile, the criminal codes of individual countries are exceptions. For example, in the Code of Turkmenistan, the obligatory condition for the removal of liability is the real repentance of the citizen. And in the Criminal Code of the People's Republic of China and Japan the term “repentance” is not used at all. The legislation of these states speaks exclusively about the objective component.