What is active repentance?

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 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 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.

Active repentance in criminal law

Remorse is regret about an action and a feeling of guilt for its results.

Article 75 of the Criminal Code of the Russian Federation and Article 28 of the Criminal Procedure Code of the Russian Federation are devoted to active repentance In particular, the Criminal Code states that an offender who has committed a crime of minor or medium gravity for the first time can be exempt from liability if, after committing illegal actions, he voluntarily confesses, helps solve the crime, compensates for the damage incurred, or otherwise compensates for the resulting crime. harm and, as a result of active repentance, will cease to be dangerous to others.

From the above definition it is clear that among the objective properties of active repentance there is one subjective one - this is the loss of the social danger of the criminal. However, it is impossible to reliably judge that a person who has committed a crime and repented within the framework prescribed by criminal norms has become safe for society.

The Criminal Code does not mention anything about the motivation that pushed the offender onto the path of active repentance . Meanwhile, this is an important point that makes it possible to predict whether the repentant defendant will break the law again and what would be advisable at the moment - to interrupt the criminal prosecution against the offender or to apply a proportionate punishment to him.

In real life, the burden of responsibility for deciding whether to apply the requirements of Article 75 of the Criminal Code of the Russian Federation to the perpetrator lies with the internal conviction of the judge, investigator or interrogator.

general information

The investigation of any crime is not a simple matter and requires a significant investment of time, effort and resources from law enforcement agencies at all levels, especially when it comes to an accidental attacker who has stumbled for the first time and crossed the border of legality. It is especially difficult to identify such a subject, since he does not belong to the criminal elements known to the police, is not listed in the database and file cabinets, which means it will be difficult to find him. Largely due to similar considerations, legislators in many countries, including Russia, have introduced into the criminal codes the possibility of avoiding punishment by voluntarily admitting to the crime, repenting and helping to uncover the illegal act.

A criminal who comes to the police station for a sincere confession saves criminal investigation and inquiry officers from carrying out numerous activities that can take months or even years. In addition to freeing law enforcement officers from work, a repentant criminal, who has realized the inadmissibility of causing harm to others, relieves society from the need to correct his behavior, which means it relieves the burden on the penitentiary system and saves taxpayers’ money.

We will talk about what the termination of the case due to active repentance requires below.

The following video will tell you what the Criminal Code of the Russian Federation says about active repentance:

Concept

In criminal law, in the articles of the Criminal Code of the Russian Federation, active repentance is understood as the performance by the stumbled subject of a set of actions demonstrating his changed attitude towards what happened and regret about the damage caused, namely:

appearing before any law enforcement agency with a confession of the crime committed;
active assistance to the police and prosecutor's office during the investigation, indicating details, motive, accomplices and providing evidence confirming the truthfulness;
compensation measures aimed at monetary or other compensation for damage caused, sufficient to satisfy the claims of the victim.

In addition to the desire to avoid punishment and the implementation of the actions provided for this by law, formal characteristics must be observed that allow for this possibility, including:

mild or moderate severity of damage and consequences from the actions committed;
implementation of an illegal act for the first time.

The possibility of admitting one’s guilt and comprehensive actions to level it are provided for in Article 75 of the Criminal Code of the Russian Federation and Article 28 of the Code of Criminal Procedure of the Russian Federation, which do not exclude forgiveness for more serious offenses, if this is provided for in the Special Part of the Criminal Code.

Legal meaning

The subjectivity of active repentance lies in the correction of a person as a result of internal changes resulting from causing harm to another and awareness of the consequences of one’s actions. However, in practice one often has to deal with the objective nature of repentance, which consists in the rational use of the opportunity to legally evade punishment.

It is left to the judge to determine the fine line between the two forms of repentance of an individual who has violated the letter of the law, who, based on life experience and personal impressions, must determine the sincerity of the defendant’s behavior.

Often, the true motives of a criminal cooperating with the investigation do not matter to the justice authority, since the testimony of one criminal element who has committed a minor crime makes it possible to prevent or solve cases with much more serious consequences.

Among criminals, there is even a separate caste of informants who actively cooperate with law enforcement agencies, helping to search for bandits and uncover illegal acts, in exchange for forgiveness of their own offenses and freedom. Now let's talk about voluntary renunciation of crime and active repentance.

Signs and differences from voluntary refusal

Repentance can only accompany committed offenses against other members of society or society itself, since conscience manifests itself when an undesirable event has already happened. The characteristic difference between refusal on a voluntary basis lies in the term itself and lies in the fact that the illegal action was not carried out, although all the necessary preparations were made.

Repentance is a consequence of too active and rash actions, often impulsive and not planned in advance, in contrast to refusal, which occurs due to fear or due to circumstances, after preliminary preparation and in the presence of malicious intent. The social danger from a person who has stumbled but realized that he was wrong is leveled out, in contrast to someone who simply refused to commit an atrocity, quite possibly simply postponing it for later.

We will talk about special cases of active repentance further.

Necessary signs of active repentance

From the definition outlined in the Criminal Code of the Russian Federation it follows that the following can be considered of active repentance

low severity of the crime;
the fact that the offender violated the law for the first time;
confession;
assistance in solving a crime;
compensation for harm caused to the victim;
loss of social danger for the rest of society.

Using these same signs, one can distinguish between active repentance and voluntary renunciation of a crime.

The main difference between active repentance and voluntary renunciation of breaking the law is the intensity of physical effort aimed at achieving the goal. Refusal to commit an offense means a person’s passive state and renunciation of criminal intentions until the moment of the offense, despite the real chance of committing this crime. Whereas active repentance is a pattern of active behavior both in relation to an already committed violation of the law, and in relation to actions carried out after that (confession, assistance in the investigation, etc.).
The second distinctive feature is that in relation to the renunciation of the crime, the offense has not been executed, which means that no one was harmed, and active repentance is permissible only after the crime has been committed, which means that there is a victim, a corpus delicti, and a culprit.

Active repentance and criminal liability

Active repentance in some countries is an incentive to relieve the offender from criminal liability. Such states include: all CIS countries (except Kyrgyzstan), Latvia, China, Mongolia, and the Republic of Korea. In addition, in most legal systems, active repentance appears as a mitigating factor.

In Russian criminal law, active repentance is assigned the role of a circumstance exonerating from liability. But due to the fact that the wording of the norm on active repentance contains the phrase “can be released”, that is, repentance itself does not become a prerequisite for getting rid of responsibility, then Article 61 of the Criminal Code of the Russian Federation, among the factors mitigating punishment, also mentions actions characteristic of active repentance (confession, assistance in solving and investigating the offense).

According to most legal scholars, repentance is possible at any stage of the proceedings. However, the trigger for release from criminal liability can be active repentance only in the sense that Article 75 of the Criminal Code of the Russian Federation puts into it - with a combination of all the listed properties and signs of repentance. Otherwise, assistance to the investigation or confession can only be a mitigating factor.

One of the conditions for getting rid of criminal liability is the minor gravity of the crime committed for the first time.

Crimes of minor gravity include intentional or careless violations of the law, the punishment for which is not more than 2 years of imprisonment. Crimes of medium gravity are also characterized by intentional or careless illegal actions, the sanctions for which are no more than 5 years. In addition, the law focuses on the fact that removal from criminal liability in connection with active repentance is also possible for violations of the law of a different severity, but only if this is mentioned in the relevant article of the Criminal Code.

Second commentary to Art. 75 of the Criminal Code of the Russian Federation

1. Exemption from criminal liability due to active repentance is an optional type of exemption from criminal liability. The court, the investigator with the consent of the head of the investigative body, the investigator with the consent of the prosecutor have the right to release from criminal liability a person who has ceased to be socially dangerous and has proven by positive post-criminal behavior that he does not need correction by applying criminal liability to him.

2. Part one of the commented article highlights the grounds and conditions for the application of this type of exemption from criminal liability. Formal conditions include:

1) committing a crime for the first time;

2) the crime committed falls into the category of minor or medium gravity.

The material basis is the actions themselves, which constitute the actual institution of active repentance.

3. The rules for applying Article 75 of the Criminal Code are explained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability.”

In addition to persons who have never committed a crime before, the Plenum of the Supreme Court of the Russian Federation also includes cases when:

a) the person has committed one or more crimes, for none of which he has been previously convicted;

b) the previous sentence at the time of commission of the new crime did not enter into legal force;

c) the previous sentence entered into legal force, but at the time of its commission one of the circumstances had occurred that annulled the legal consequences of bringing the person to criminal liability;

d) the previous sentence entered into legal force, but at the time of the trial the criminality of the act for which the person was convicted was eliminated; e) the person was previously released from criminal liability (clause 2 of the said resolution).

4. Active repentance is a set of actions of a person who committed a crime, indicating that this person has lost a social danger. These include:

a) surrender (Article 142 of the Code of Criminal Procedure) consists of a voluntary report of a person to the competent authorities about the crime he has committed, made orally or in writing (a statement about a crime made by a person in connection with his detention on suspicion of committing this crime is not considered voluntary );

b) facilitating the disclosure and investigation of this crime consists of providing law enforcement agencies conducting a preliminary investigation or inquiry into this criminal case with such information and information that is new to them, i.e. were not previously obtained by them during investigative actions;

c) compensation for damage or otherwise making amends for the harm caused by this crime, which consists of compensation in kind or in cash for property damage, or monetary compensation for moral damage, providing any assistance to the victim, apologizing to him, as well as taking other measures, aimed at restoring the rights of the victim, the legitimate interests of the individual, society and the state, violated as a result of the crime.

5. Although the law expresses an imperative requirement for the mandatory presence of all forms of active repentance in a person’s behavior, judicial practice proceeds from the fact that exemption from criminal liability is possible provided that the person fulfills those components of active repentance that, taking into account the specific circumstances of the case, the person had an objective opportunity commit (for example, a person was caught red-handed at the scene of a crime, which excludes the possibility of turning himself in, but does not prevent him from further actively contributing to the investigation of the crime and making amends for the harm caused). It does not play an important role; the person who committed the crime has lost his social danger after performing all the actions or only those that were objectively possible to perform in the current situation.

6. Part two of the commented article contains the provision that exemption from criminal liability for committing grave and especially grave crimes is also possible, however, such grounds for exemption must be provided for in the notes to the articles of the Special Part of the Criminal Code. Similar notes are contained, for example, in the following articles of the Criminal Code: 110, 126, 127, 178, 184, 204, 205, 206, 208, etc.

List of crimes for which active repentance is provided

Exemption from criminal liability due to active repentance (in addition to minor crimes) is possible for such criminal acts as:

Kidnapping. If the offender, of his own free will, gives freedom to the victim, then criminal measures will not be applied to him for this crime.
First time committed act of human trafficking. If the criminal voluntarily gives freedom to the victims and helps in solving the crime, then he will be released from criminal liability.
Commercial bribery and bribery. Exemption from criminal liability in relation to these crimes is due to the presence of one or more circumstances listed in the law:
assistance in solving a crime;
notifying law enforcement agencies about an upcoming violation of the law (bribery or transfer of a bribe).
Preparation of a terrorist attack or assistance to a terrorist cause. Criminal liability is prevented by timely notification of the authorities about an impending crime or other obstruction of its commission.
Taking a hostage. It is necessary to release the victim independently or at the request of the authorities.
Involvement in illegal armed groups. The key to rehabilitation is voluntary leaving the gang and surrendering weapons.
Participation in a criminal community or organization. Discharge from responsibility is possible in connection with independent exit from the gang and assistance in solving criminal activities.
Illegal purchase, movement, storage and other actions with weapons or drugs. To avoid liability, it is necessary to surrender the subject of the offense and contribute to the solution of the crime.
Treason, espionage and power grab. The culprit is released from liability due to timely notification of the authorities about the crime and prevention of damage to Russia.
Participation in an extremist community, religious or other prohibited association. To avoid criminal prosecution, you must voluntarily withdraw from the membership.
Desertion committed for the first time due to difficult life circumstances or other unauthorized abandonment of a unit.
Giving false testimony in court. The condition for rehabilitation is to report the unreliability of information before the court makes a decision.

Release procedure

It is permissible to terminate the prosecution of a person accused of a criminal offense due to active repentance at any stage of investigative actions, as well as during the proceedings of the case in a judicial authority. The decision to close the case is made, depending on the stage of the investigation, by the prosecutor or the judge, formalizing his decision with an appropriate resolution, which indicates that the case is closed and provides justification.

The last point is important, since the lack of specification of the components of active repentance on the part of the defendant has more than once become the reason for the return of cases for retrial, as determined by the Judicial Collegium.

The court's decision

The court decision must include the following points:

the fact of the defendant's surrender, indicating the date, time and document confirming this event, for example, an entry in the duty log or a report from the detective;
specific actions in terms of assistance to investigative actions that were provided by a person claiming to be recognized as actively repentant, for example, indicating other participants in the robbery or beating;
measures taken by the defendant in relation to the victim or injured person in order to neutralize the consequences of his offense, which falls under criminal liability.

Making amends

Making amends can take various forms, including:

Return of stolen property in full to the victim or investigative authorities, as well as compensation in monetary terms.
Restoring damage on your own or at your own expense, to a condition comparable to that which was before the damage to property or property.
Payment for treatment and related expenses, as well as compensation for moral damage to the victim.
Public apologies if libel or other actions of a defamatory or offensive nature were committed.

Only if all the factors provided for in Article 75 of the Criminal Code of the Russian Federation are present, the subject accused in criminal proceedings can be relieved of responsibility, including for serious and economic crimes, and his case is closed.

Economic crimes and active repentance

Similar to active repentance, Russian criminal law provides for exemption from liability for a number of crimes in the economic sphere.

The phrase “ active repentance ” is not used directly in relation to these offenses. However, a number of conditions (the initial commission of the offense and compensation for damage) make it possible to mention active repentance regarding these episodes of violation of the law.

It is possible to avoid criminal liability for the following economic crimes:

A first-time offense of non-payment of taxes or failure to fulfill the obligations of a tax agent, if the damage to the state is fully compensated.
Illegal entrepreneurship without aggravating circumstances.
Banking activities prohibited by law.
Illegal acquisition of a targeted government loan or its misuse.
Malicious failure to repay a loan.
Illegal use of a trademark or other marking.
Illegal acquisition of property by athletes, participants or organizers of competitions for the sake of changing the results of the competition.
Violations during the issue of shares and other securities (without aggravating circumstances).
Deliberate evasion of disclosure of information and violation of accounting of rights to securities.
Market manipulation and obstruction of the rights of shareholders.
Offenses in the field of bankruptcy proceedings.
Failure to pay customs duties.

For offenses from points 2 to 12, relief from criminal liability occurs subject to a primary violation of the law, as well as compensation for damages in the amount of 5 times.