Admission of guilt and active repentance as the main mitigating circumstances in criminal proceedings

2.2. Special types of exemption from criminal liability in connection with active repentance

I have already noted above that exemption from criminal liability in connection with active repentance is allowed only in relation to a person who has committed a minor crime for the first time, intentionally or through negligence. Therefore, usually the norm in question cannot be applied to a person who has a criminal record or has committed a crime of another category.

Special conditions for release from criminal liability in connection with active repentance have certain features compared to other conditions of such a basis. In this case, a common circumstance for all special conditions of release is the voluntary action of the person who committed the crime.

Voluntariness in this case means that the person had a real opportunity to do otherwise, but chose to stop and admit his participation in the crime.

When applied to specific special conditions, the term “voluntariness” is filled with its own content and has a number of features. Therefore, it is necessary to consider each of the special types of exemption from criminal liability in connection with active repentance.11

According to the nature of the conditions under which they are applied, special grounds for exemption from criminal liability can be divided into four groups. The first consists of such types of exemption from criminal liability, for the application of which it is enough to actually stop the crime being committed, which is legally already completed.12 This group includes: voluntary termination of participation in an illegal armed group with the surrender of weapons (note to Article 208 of the Criminal Code); voluntary surrender of illegally acquired or stored weapons, ammunition, explosives or explosive devices (note to Article 222 of the Criminal Code); voluntary surrender of illegally manufactured or repaired weapons, ammunition, explosives or explosive devices (note to Article 223 of the Criminal Code).

The second group is formed by active actions that indicate the active nature of the repentance of the person who committed the crime: voluntary release of the kidnapped person (note to Article 126 of the Criminal Code); voluntary release of a hostage (note to Article 206 of the Criminal Code); voluntary notification of the bribe-giver to the body that has the right to initiate a criminal case about the fact of giving a bribe (note to Article 291 of the Criminal Code); voluntary statement by a witness, victim, expert or translator during an inquiry, preliminary investigation or trial about the falsity of their testimony, conclusion or about a knowingly incorrect translation (note to Article 307 of the Criminal Code).

The third group of special types of exemption from criminal liability is characterized by the fact that active repentance serves as the basis for exemption from liability only on the condition that the active actions of the perpetrator resulted in preventing the occurrence of a crime or preventing further damage to legally protected interests that could have occurred if this had not been prevented active socially useful actions of the perpetrator. Thus, a person who participated in the preparation of an act of terrorism is exempt from criminal liability if he, by timely warning the authorities or otherwise contributed to the prevention of an act of terrorism (note to Article 205 of the Criminal Code).13 And a person who has committed high treason, espionage or actions aimed at forcibly seizing or forcibly retaining power or forcibly changing the constitutional system of the Russian Federation, is exempt from criminal liability if it, by voluntary and timely notification to the authorities or otherwise contributed to the prevention of further damage to the interests of the Russian Federation (note to Article 275 of the Criminal Code). 14

The fourth group includes types of exemption from criminal liability that are based on taking into account the special circumstances that led to the commission of the crime. Moreover, such a circumstance serves as the only sufficient basis for exemption from criminal liability. For example, a person who gave a bribe is exempt from criminal liability if there was extortion of a bribe by an official (note to Article 291 of the Criminal Code).

Special types of exemption from criminal liability are applied only on the condition that the actions actually committed by the perpetrator do not contain the elements of another crime.

If exemption from criminal liability due to active repentance (Article 75 of the Criminal Code) is optional, then all special types of exemption from criminal liability, being also combined with active repentance, are mandatory, i.e. apply regardless of the discretion of the competent law enforcement authorities.15

Thus, exemption from criminal liability due to active repentance can, as a general rule, be applied only to persons guilty of crimes of minor or moderate gravity. In this case, it is sufficient to establish the presence of any one form of active repentance: either a confession, or assistance in solving a crime, or compensation for damage, or making amends for harm in another way.

Special types of exemption from criminal liability provided for in the articles of the Special Part of the Criminal Code can also be applied when committing crimes of other categories; the grounds for their use are provided by the legislator in relation to each type of crime. This type of exemption from criminal liability is of great preventive importance, since it stimulates the refusal of further criminal activity.

Signs of active repentance

Exemption from criminal liability due to active repentance is possible subject to a number of conditions specified in Art. 75 of the Criminal Code of the Russian Federation. These include the following circumstances: a) committing a crime for the first time; b) the act committed belongs to the category of crimes of minor gravity; c) surrender of the person who committed the crime; d) compensation for damage caused or otherwise making amends for the harm caused by the crime.

The given circumstances are divided into objective and subjective. The presence of objective signs does not depend on the will of the perpetrator and his behavior after the commission of the crime. These include conditions such as committing a crime for the first time and of minor gravity. Subjective circumstances are directly dependent on the behavior of the perpetrator and include surrender, assistance in the investigation of the crime, and compensation for the harm caused. Let's consider these signs in more detail.

A mandatory condition provided for in Art. 75 of the Criminal Code of the Russian Federation is the commission of a crime for the first time. Specified

147See: Makhov V., Peshkov M.

Plea bargain // Russian justice. 1998. No. 7. pp. 17-19.

148See: Militsin S.

Plea bargains: is the Russian option possible? // Russian justice. 1999. No. 12. P. 42.

This feature makes it possible to exclude cases of exemption from criminal liability of persons who have a stable criminal orientation and, as a consequence, have an increased degree of danger. V. Kolomeets does not agree with this decision of the legislator, who in this regard notes the following: “In Art. 75 of the Criminal Code of the Russian Federation we are talking only about a person who committed a crime for the first time and turned himself in. It is difficult to understand the essence of why the Criminal Code needed to “cut off the oxygen” to other persons, the same repeat offenders? In principle, there are no and should not be obstacles to the confession of any person, regardless of the type of act.”149 Such views on the issue under consideration give rise to serious objections, since repeated commission of a crime in most cases indicates that the offender has deep-rooted antisocial attitudes and an intention to continue to commit socially dangerous actions. Because of this, the repetition of the crime should in all cases exclude the possibility of exemption from criminal liability in accordance with Art. 75 of the Criminal Code of the Russian Federation.

A crime is considered committed for the first time if the person has not previously committed any criminal act at all. This sign also occurs in cases where the subject has previously committed an act that, according to formal characteristics, is a crime, but due to its insignificance does not pose a public danger (Part 2 of Article 14 of the Criminal Code of the Russian Federation), or has caused harm in the presence of one of the circumstances excluding criminality of the act (necessary defense, justified risk, etc.). The circumstance under consideration is also present in the absence of one of the mandatory elements of a crime in a previously committed act (committing a socially dangerous act by an insane person or a person under the age of criminal responsibility, innocent causing of harm).

149Kolomeets V.

Confession: a new interpretation // Russian justice. 1997. No. 10. P. 35.

A crime is also considered committed for the first time if a person previously committed a criminal tort, but all criminal legal consequences that arose in connection with the fact of its implementation ceased. Such circumstances include exemption from criminal liability for a previously committed crime (expiration of the statute of limitations, reconciliation with the victim, adoption of an amnesty act, etc.) or cases where a person was convicted and the criminal record was withdrawn or expunged by the time the new crime was committed .

For a more complete understanding of the issue under consideration, it is necessary to establish from what moment exemption from criminal liability ceases all legal consequences that arose in connection with a previously committed crime. If a person previously participated in a crime and was released from criminal liability due to active repentance, reconciliation with the victim or a change in the situation, it is necessary that the new act be committed after a law enforcement official issues a decision to terminate the proceedings.

When exempted from criminal liability due to the expiration of the statute of limitations, a decree on exemption from criminal liability is not required to annul the criminal legal consequences. Because of this, a crime that began after the passage of Art. 78 of the Criminal Code of the Russian Federation, the statute of limitations is recognized as committed for the first time, regardless of whether a decision was made to terminate the proceedings in connection with the fact of the commission of a previous crime or not.

In case of release from criminal liability in connection with an amnesty act, the criminal legal consequences are canceled from the moment the amnesty resolution comes into force. For this reason, if a repeat offender

If the crime begins after the issuance of an act of amnesty, releasing from responsibility for the previous crime, it is recognized as having been committed for the first time.

As noted earlier, a crime is recognized as having been committed for the first time and in cases where a person was convicted of a previous offense, served his sentence, and by the time the new act began, the criminal record was duly vacated or expunged.

The above circumstances exhaust the range of conditions under which a newly committed crime is considered to have been committed for the first time. For this reason, the position of Kh. D. Alikperov seems very controversial, according to which a person who has previously committed a crime on the territory of a foreign state, including on the territory of the CIS member countries150, is recognized as having committed a crime for the first time. According to Art. 12 of the Criminal Code of the Russian Federation, citizens of the Russian Federation and stateless persons permanently residing in Russia are subject to liability under the criminal law of Russia if the act they committed is recognized as a crime in the state in whose territory it was committed, and if these persons were not convicted in a foreign state.

The above means that the commission of a crime by these persons on the territory of a foreign state does not at all exclude the action of the Criminal Code in relation to them. They are subject to absolutely all the consequences provided for by the General and Special Parts of the Criminal Code of the Russian Federation. For this reason, the commission of a crime on the territory of a foreign state by a citizen of the Russian Federation and a stateless person permanently residing in Russia does not exclude repetition, accumulation or relapse in the event of a repeated commission of a crime on the territory of our country. Consequently, if the previously specified person commits

150See: Alikperov X.

Exemption from criminal liability due to active repentance // Legality. 1999. No. 5. P. 17.

But

has committed a crime on the territory of a foreign state and commits a crime again in our country, this repeated act cannot be recognized as having been committed for the first time.

A different approach to the issue being studied can lead to the most absurd decisions, which can be clearly illustrated with a simple example. Thus, having committed a crime on the territory of a foreign state, a citizen of the Russian Federation, in accordance with Art. 12 of the Criminal Code of the Russian Federation, can be convicted in our country if the act committed by him is recognized as criminal in the state where it was committed. Moreover, if while serving his sentence he commits a new crime, then, according to Kh. D. Alikperov, this repeated act must be recognized as committed for the first time (!), which directly contradicts the provisions of Art. 16 and 18 of the Criminal Code of the Russian Federation.

The next condition for the application of Art. 75 of the Criminal Code of the Russian Federation is the commission of a crime of minor gravity. In accordance with Art. 15 of the Criminal Code of the Russian Federation, intentional and careless acts are recognized as crimes of minor gravity, for the commission of which the maximum punishment provided for by criminal law does not exceed two years of imprisonment. According to the imperative instructions of Art. 75 of the Criminal Code of the Russian Federation, exemption from criminal liability is permissible only when committing crimes of minor gravity. Participation of the perpetrator in a crime of another category, including carelessness, excludes the possibility of exemption from criminal liability due to active repentance.

As the study of practice materials shows, in some cases officials allow the use of Art. 75 of the Criminal Code of the Russian Federation in relation to persons who have committed crimes of average gravity, motivating their decision by the fact that the crime caused minor harm, it was committed through negligence, as well as the presence of other positive circumstances in the case151. This approach is absolutely unacceptable, as it directly contradicts the provisions of the law.

151Shalimov V. G., Kushcharev I. A., Magomedov A. 10.

Specified work. P. 17.

Because of this, in the presence of exceptional circumstances indicating the disappearance or significant reduction of the danger of the perpetrator or the crime committed by him, which falls into the category of medium gravity, exemption from criminal liability should be applied in connection with a change in the situation (Article 77 of the Criminal Code of the Russian Federation), conditional sentence ( Article 73 of the Criminal Code of the Russian Federation) or the imposition of a more lenient punishment than provided for this crime (Article 64 of the Criminal Code of the Russian Federation). There are no grounds for exemption from criminal liability due to active repentance in this case.

The study of the subjective conditions for release from criminal liability in connection with active repentance must begin with a question that has caused the most lively discussions since the appearance in the law of the rule providing for the institution of criminal law under consideration. Above, we determined that subjective circumstances include surrender, assistance in the investigation of a crime, and compensation for harm caused.

In this regard, the question arises as to whether it is necessary to be exempt from criminal liability under Art. 75 of the Criminal Code of the Russian Federation, the perpetrator commits all the socially useful actions specified in it, or it is sufficient to establish some of them. In this regard, several positions have emerged in the literature. “Within the meaning of current legislation, the establishment of any of the possible acts (acts) indicating repentance may entail the release of a person from criminal liability”152. According to R.P. Petrov and K.L. Nikolaev, in order to be released from criminal liability, it is also necessary to have one of the conditions provided for in Art. 75 of the Criminal Code of the Russian Federation153.

152Shalamov V. G., Kushnarev V. A., Magomedov A. Yu.

Specified work. P. 16.

153Petrov R. P., Nikolaev K. L.

Issues of exemption from criminal liability in connection with active repentance //
In the
collection. Procedural and forensic problems of solving and investigating crimes in the context of reforming federal legislation: materials of a scientific and practical conference. Cheboksary, 1999. P. 22.

FROM

V.V. Sverchkov adheres to a different point of view. He believes that only the sum of all the listed conditions forms a necessary prerequisite for exemption from criminal liability. The absence of at least one of these conditions, if it is necessary for a specific legal fact, should indicate that, as such, there is no basis for exemption from criminal liability, but there are certain circumstances that mitigate criminal liability154.

A somewhat different position is defended by Kh. D. Alikperov: “One of the three grounds (i.e. compensation for damage caused or making amends for harm) for exemption from criminal liability in connection with active repentance, taking into account the nature and circumstances of a particular crime, may be variables (alternative). However, the presence of voluntary surrender and assistance in solving the crime are indispensable (no alternative). Therefore, the absence of at least one of these two grounds excludes the possibility of releasing a person from criminal liability in connection with his active repentance”153.

The answer to the question which of the presented points of view is correct requires an understanding of the content of Art. 75 of the Criminal Code of the Russian Federation, which provides for the possibility of applying this type of exemption from criminal liability. Analysis of this norm allows us to conclude that all these conditions are listed in the law without alternative. It directly states the possibility of exemption from criminal liability only in the presence of a full set of named circumstances. Because of this, the position on the need to establish at least one of the circumstances

154See: Sverchkov V.V.

Current issues of exemption from criminal liability in connection with active repentance // State and law. 1999. No. 12. P. 53.

155 See: Alikperov Kh. D.

Exemption from criminal liability. Moscow-Voronezh, 2001.P. 21.

bodies specified in Art. 75 of the Criminal Code of the Russian Federation seems to us to be incorrect.

The presence, for example, of only one confession, if the culprit refuses to help the investigation and compensate for the harm caused, clearly indicates that his social danger has not decreased, due to which there are no grounds for exemption from criminal liability.

At the same time, it should be noted that in a number of cases the circumstances of the case develop in such a way that the commission specified in Art. 75 of the Criminal Code of the Russian Federation, actions cannot be carried out by the guilty person due to objective circumstances beyond his control. For example, the specifics of the crimes provided for in Art. 119 of the Criminal Code of the Russian Federation (threat of murder), 130 of the Criminal Code of the Russian Federation (insult), is such that in most cases the identity of the perpetrator is known immediately when they are committed. In this regard, the possibility of turning oneself in is objectively excluded here, since information about the culprit, as a rule, is already known to both the victim and the justice authorities. In this case, if we mechanically adhere to the position on the need to establish all the conditions provided for in Art. 75 of the Criminal Code of the Russian Federation, then the possibility of exemption from criminal liability in connection with active repentance is excluded here.

This state of affairs seems to us unfounded for the reason that it directly contradicts the main goals of this type of exemption from criminal liability. It turns out that the person who committed the crime sincerely repents of the crime committed, wants to compensate for the harm caused and assist in the investigation of the crime. However, despite this, the possibility of applying Art. 75 of the Criminal Code of the Russian Federation is excluded, which cannot be considered justified.

Due to this circumstance, we can conclude that the application of exemption from criminal liability

validity in connection with active repentance, as a rule, is possible in the presence of all those specified in Art. 75 of the Criminal Code of the Russian Federation conditions. Moreover, when the possibility of turning himself in is excluded for reasons beyond the control of the guilty party, and all other circumstances provided for by law are present, he can still be released from criminal liability in accordance with Art. 75 of the Criminal Code of the Russian Federation.

A. A. Chuvilev takes a similar position: “In cases where the commission of one or another of those specified in Part 1 of Art. 75 of the Criminal Code of the Russian Federation of actions did not depend on the will of the accused, it would hardly be correct not to consider the possibility of terminating the criminal case against him in connection with active repentance”56. The presented point of view is reflected in judicial practice. Thus, the Presidium of the Supreme Court of the Republic of Mordovia released Agafonova from criminal liability, despite the lack of a confession. In this case, the court took into account that Agafonova is of advanced age, is an old-age pensioner and receives a small pension. The crime was committed by her for the first time and belongs to the category of minor gravity. At the same time, the court took into account that the perpetrator repented of her crime, assisted the investigation in solving the crime, and compensated for the damage caused157.

This opinion is supported by A. Savkin, who writes the following on this matter: “In practice, cases of active repentance may occur even in the absence of its individual signs, for example, when the suspect did not have time to confess and was detained at the scene of the crime. However, even in this case, the suspect can show active repentance, fully admitting his guilt and repenting of his actions, voluntarily making amends for the harm caused by the crime and actively contributing to the investigation.”158

15565Chuvilev A. L.

Exemption from criminal liability due to active repentance // Criminal law. 1998. No. 2. P. 13.

157Bulletin of the Supreme Court of the Russian Federation. 1999. No. 2. P. 16.

158 Savkin A.

Specified work. P. 37.

Let us consider separately the subjective conditions of active repentance. The first of these is the voluntary surrender of the guilty party. In accordance with Art. 142 of the Code of Criminal Procedure of the Russian Federation, a confession is a voluntary communication of a person about the crime he has committed, both orally and in writing. Its main feature is guilt, that is, a truthful and complete statement by a person about the fact of committing a crime and his involvement in this act. It seems quite logical to us that the perpetrator must give detailed and comprehensive testimony regarding the circumstances of the crime committed. Concealing certain information or misleading the investigation by giving false testimony excludes the criterion in question.

At the same time, it should be noted that in this case, the testimony of the perpetrator should relate only to the circumstances of the crime in relation to which the confession takes place, and should not extend to other episodes of his criminal activity. The addressee of the confession may be law enforcement agencies authorized to initiate and investigate a criminal case (prosecutor's office, internal affairs bodies, etc.), or other government bodies obligated to transfer information that has become known to them to the appropriate authorities in order to make the necessary decision. “Turning out involves contacting law enforcement agencies. Appealing to the wrong body, which should directly be involved in the investigation, does not change the assessment of what happened as a confession. As an exception, an appeal to other bodies of state power, administration, or local self-government can be considered a confession." 159

Confession can be carried out both personally and through the mediation of other persons, as well as using

159Mukhamedzyapov I., Karuzin V.

Procedural registration of confession // Legality. 1999. No. 8. P. 19-20.

the use of technical means of communication or postal items. For this reason, the position of L.V. Tikhomirova and M.Yu. Tikhomirov is far from indisputable, according to which surrender is a “voluntary personal (emphasis added - V.E.)

appeal (appearance) of the person who committed the crime with a statement about him to the bodies conducting the inquiry, investigation, prosecutor's office, court with the intention of handing himself over to the hands of justice”’60.

The main point that determines the legal nature of a confession is not the way a person contacts law enforcement agencies, but his desire to assist in solving a crime, to atone for his guilt by reporting information about the crime committed. This is drawn attention to by V. Kolomeets, who states the following: “The same confession today should not, in my opinion, be understood only as the obligatory and direct personal arrival of a person at a precisely designated place... The main thing in a confession, of course, is not personal appearance somewhere, but the cessation of a certain act and recognition of one’s participation in it”161.

Voluntary appearance means that a person makes the appropriate decision independently, and not under the influence of irresistible external coercion. The Supreme Court of the Russian Federation, in its resolution “On the practice of imposing criminal punishment by courts” dated June 11, 1999, indicated that when deciding whether a confession took place or not, “... It is necessary to check whether the statement submitted to the investigative authorities was or a report of a crime made to an official of the investigating agency is voluntary, and whether this is not due to the fact that the person was detained as a suspect and confirmed his participation in the commission of the crime. If in a case initiated upon the commission of a crime, the person who committed it has not been identified, voluntary

160 Tikhomirova L. V., Tikhomirov M. Yu.

Legal encyclopedia. M., 1998. P. 505.

161Kolomeets V.

Specified work. P. 36.

the appearance or communication of a person about what he has done should be considered as a confession. A statement by a person brought to criminal liability about crimes he has committed that are unknown to the investigative authorities should also be considered as a confession.”|b2.

“The testimony of the accused about other unsolved crimes committed by him is also “equated” with a confession,” writes V. Vyrastaikin, “even if these testimonies are recorded not in the protocol of the confession, but in the protocol of his interrogation”163.

In our opinion, a report to law enforcement agencies cannot be considered as a voluntary surrender when the culprit is exposed and he knows about it. This is confirmed by materials from judicial practice. The resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of bribery and commercial bribery” dated February 10, 2000 notes that a message made in connection with the fact that a bribe or commercial bribery is being given cannot be recognized as voluntary.

became known to the authorities.

There is also no confession in the case where the person who committed the crime is forced to confess due to the fact that his involvement in the crime is proven by the materials collected in the case. The Presidium of the Supreme Court of the Russian Federation took a similar position in the case of B., not recognizing his statement as a confession, since the confession of guilt was forced and given under the weight of the collected evidence165.

162 Collection of decisions of the Plenums of the Supreme Court of the Russian Federation (USSR, RSFSR) on criminal cases. M. 2000. P. 74.

163Vyrastaikin V.

Voluntary renunciation of a crime and surrender // Russian justice. 2001. No. 9. P. 57.

164Collection of decisions of the Plenums of the Supreme Court of the Russian Federation (USSR, RSFSR) on criminal cases. M. 2000. P. 221.

165 Resolution No. 738p97sk in the Bezmaternykh case // Collection of decisions of the Plenums of the Supreme Court of the Russian Federation (USSR, RSFSR) on criminal cases. M., 2000. P. 553.

The criterion under consideration is not excluded in cases where a person is encouraged to confess under the influence of external influence, which, however, is not irresistible. For example, one of the parents, having learned about their son’s involvement in a crime, using personal influence, forces him to confess. In this case, despite the influence that has taken place, the perpetrator retains the opportunity to independently choose the option of further behavior, due to which the message he made is recognized as voluntary.

The motives for surrender can be very different and do not affect the legal assessment of the actions of the perpetrator. These include repentance for what they have done, awareness of the full depth of the social danger of the criminal behavior committed, shame for the crime committed, fear of criminal liability, etc.

The next subjective sign of active repentance is assistance on the part of the culprit in solving the crime committed. It is necessary to point out that, in its essence, the named condition directly follows from the previously discussed one - voluntary surrender. It seems completely natural that the perpetrator must not only report the crime to the competent state authority, but also provide all possible assistance in establishing all legally significant circumstances of the case. Assistance in solving a crime can be expressed in various actions. This may be giving truthful testimony in the case, issuing instruments and means of committing a crime, property obtained by criminal means, assistance in exposing accomplices, providing the investigation with other evidence confirming the involvement of the perpetrator or other persons in the crime committed.

Analysis of the required actions necessary to establish the presence of the characteristic in question allows us to note some inaccuracy provided by law

wording indicating the need to contribute only to the disclosure of the act committed by the perpetrator.

Solving a crime means searching and identifying persons involved in its implementation. In this case, the crime is considered solved if the persons guilty of its commission are identified and there is sufficient information indicating their involvement in the criminal act. At the same time, the activity of administering justice is by no means limited to solving a crime alone. An equally important stage is its investigation, during which evidence is collected confirming the involvement of the perpetrator in the committed socially dangerous act. Because of this, by only solving a crime, the list of actions required from him is not and cannot be exhausted.

This means that, along with assistance in solving a crime, in fact, the perpetrator is also required to assist in its investigation. It is no coincidence that, when highlighting the signs of assistance in solving a crime, most authors include among them the participation of the perpetrator in the implementation of investigative actions. “Contributing to the solving of a crime is expressed in the fact,” writes N. I. Vetrov, “that the person guilty of committing a crime during an inquiry, preliminary investigation or court hearing, in addition to admitting his guilt, reports previously unknown facts and information confirming the commission of the crime, exposing his accomplices or facilitating their search, the discovery of property obtained by criminal means, other objects and instruments for committing a crime”166.

In this regard, one should agree with the opinion of V.V. Sverchkov that the current design of the disposition of Part 1 of Art. 75 of the Criminal Code of the Russian Federation encourages law enforcement officials to self-

166 Vetrov N. I.

Said work P. 336.

freely broad interpretation of this concept - to include in it the process of investigation167. The current state of affairs, when the practice of applying Art. 75 of the Criminal Code of the Russian Federation does not correspond to the provisions enshrined in the criminal law and cannot be recognized as correct. Due to this circumstance, the disposition of Art. 75 of the Criminal Code of the Russian Federation requires, according to the author, expansion. This should be reflected in the establishment, among the conditions necessary for the application of this norm, of facilitating not only the disclosure, but also the investigation of the crime committed by the perpetrator.

Such a change in the design of the article under consideration would allow, firstly, to expand the scope of positive post-criminal behavior of the perpetrator. Secondly, this can greatly contribute not only to the disclosure of the criminal act committed, but also to its investigation. Thirdly, this step will bring the existing practice of applying this type of exemption from criminal liability into compliance with the requirements of the law.

The next obligatory sign of active repentance enshrined in the law is compensation for the damage caused by the perpetrators or making amends for the damage in another way. This condition is, perhaps, the main one for this type of exemption from criminal liability, because the essence of repentance primarily comes down to the need on the part of the perpetrator to compensate or make amends for the harm caused by the criminal act.

It should be noted that the legislator, when determining the conditions for active repentance, indicates compensation for the damage caused or making amends for the harm caused by the crime in another way, but does not disclose their content. A. Khalikov draws attention to this, noting that finding the line between these characteristics

167 Sverchkov V.V.

Specified work. P. 58.

very difficult'68. Because of this, the question naturally arises about the relationship between the noted formulations.

According to the author, damage in the context of the issue under consideration should be considered material losses in the form of a decrease in the owner’s funds and lost profits. Other harm should be understood as all other consequences of the crime committed: physical, moral, environmental, managerial or other harm.

In this regard, compensation for damage is an adequate replacement of material losses by the perpetrator contributing monetary or other material resources to the victim’s funds on account of the seized, destroyed or damaged property. This may be expressed in the provision of a monetary equivalent of the property lost by the victim or a similar thing, or the restoration by the perpetrator of the property damaged by him.

Making amends for harm in other ways involves compensation for moral, physical or other non-property consequences through monetary payments or other means. The latter should be understood as an apology to the victim, public refutation of slanderous fabrications, payment for treatment, participation of the perpetrator in caring for the victim during illness caused by the crime, and other similar actions.

It should be taken into account that a prerequisite for the application of this type of exemption from criminal liability is the commission by the offender of actions aimed at restoring the violated good. N. Erokhina and A. Chuvilev in this regard reasonably point out that it is hardly correct to agree with the termination

168See: Khalikov A.

Compensation for damage to victims // Legality. 2000. No. 9. P. 34.

criminal case under Art. 75 of the Criminal Code of the Russian Federation, when the accused only promised to compensate for the damage caused169.

Along with the considered circumstances, it is necessary to highlight a number of conditions, the presence of which is not mandatory for the application of the institution of criminal law being studied, but is taken into account when making an appropriate decision. Exemption from criminal liability is possible only in the event of actual correction of the person who committed the crime, when the level of his danger is significantly reduced. Because of this, applying Art. 75 of the Criminal Code of the Russian Federation, it is necessary to take into account not only the circumstances specified in the law, but also other conditions that indicate positive changes in the behavior of the offender and confirm the low degree of his danger. These circumstances include the positive characteristics of a person, his entry into work or study, the presence of children and other dependents, participation in social activities, recovery from alcoholism, drug addiction or substance abuse, a revision of his attitude towards work and other similar factors. .,

All this allows us to move away from a strictly formal approach to exemption from criminal liability in connection with active repentance, applying it only in cases of actual reduction of the danger of the perpetrator.

It should be noted that the noted conditions are not mandatory for the criminal law institution in question, due to which Art. 75 of the Criminal Code of the Russian Federation can be applied in their absence. At the same time, taking into account these circumstances will, without a doubt, help optimize this type of exemption from criminal liability, as well as eliminate cases of its unreasonable use.

As noted above, active repentance is a discretionary type of exemption from criminal charges.

169 Chuvilev A., Erokhina I.

Supervision over the legality of termination of criminal cases in connection with active repentance // Legality. 1999. No. 8. P. 22.

responsibility, that is, applied at the discretion of a law enforcement official. This rule seems to us to be completely justified, since it allows us to eliminate cases of exemption from criminal liability without proper grounds. “Often,” writes A. Savkin, “persons who have committed a crime, trying to avoid deserved punishment, imitate active repentance. By admitting their guilt and repenting of the crime committed, such persons do not objectively confirm their regret for what they have done.”170 For this reason, when considering the possibility of applying exemption from criminal liability in connection with active repentance, law enforcement agencies must have firm confidence in the fact of the correction of the offender. Only under this condition can the goals set for the institution of exemption from criminal liability be achieved.

If a decision is made to terminate the criminal case due to active repentance, the victim is notified about this, who has the right to appeal the court ruling or the decision of the prosecutor, investigator, investigative body to a higher court or to a higher prosecutor.

It should be taken into account that, according to Art. 28 of the Code of Criminal Procedure of the Russian Federation, termination of a criminal case in connection with active repentance is not allowed if the accused objects to this. In this case, the proceedings continue as usual. At the same time, as N.V. Vasilyev rightly points out, a necessary condition is not just the consent of the person to terminate the case, but also his awareness, that is, legal awareness of the circumstances of the criminal case, the proof of the crime and guilt171.

170 Savkin L.

Specified work. pp. 36-37.

171 See: Vasiliev N.V.

Problems of ensuring individual rights when exempted from criminal liability on non-rehabilitating grounds // In the collection. Problems of legal regulation of the security of the individual, society and state in the conditions of modern Russia. Moscow-Smolensk, 2001. P. 256.'

Chapter 4

EXEMPTION FROM CRIMINAL CHARGES

LIABILITY IN CASES

List of sources used

1. Criminal Code of the Russian Federation-M: 2013
2. On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability: Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 19
3. On the practice of courts considering criminal cases of violation of copyright, related, inventive and patent rights, as well as illegal use of a trademark: Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 26, 2007 N 14
4. Judicial acts in the case of attempted illegal sale of narcotic drugs and theft have been amended: the instruction to cancel the suspended sentence on the basis of Art. 75 of the Criminal Code of the Russian Federation, the punishment for the totality of sentences was commuted in accordance with Art. 70 of the Criminal Code of the Russian Federation: Determination of the Supreme Court of the Russian Federation dated April 2, 2008 N 50
5. Diakonov V.V. Criminal law of Russia (General part): Textbook / V.V. Diakonov -M. — 2003.-245s
6. Criminal law of the Russian Federation: General part: Textbook / Ed. prof. L.V. Inogamova - Khegai-M.: INFRA-M, 2002- 510s
7. . Ignatov A.N., Krasikov Yu.. Criminal law of Russia. Textbook for universities / A.N. Ignatov, Yu. A. Krasikov.-M: NORMA-INFRA, 2008. – 435 p.
8. Alikperov Kh.D. Exemption from criminal liability / Kh.D. Alikperov.-M.: Voronezh, MODEK, 2001- C 121
9. Savkin A.V. Theoretical and legal problems of active repentance for a crime: Monograph / A.V. Savkin.- M., 2002 – 365s
10. Raroga A.I. Criminal law of Russia. General and Special parts: textbook./A.I. Raroga - M.: Prospekt., 2004- 450s
11. Kirillova N.P. Termination of a criminal case on non-rehabilitating grounds/N.P. Kirillova.-SPb., 2003 – P 168
12. Exemption from criminal liability due to active repentance // Criminal law. /edited by A.V. Chuvilev-M: 2003-C148
13. Ryzhakov A.P. Criminal procedure: Textbook for universities/A.P. Ryzhakov. - M., 2002- 321s

Important point

There is no mention in the legislation of the motivation that pushes the subject to active repentance. Meanwhile, this is a rather important point. Knowing the motivation of the subject, it is possible to predict whether he will break the law another time or not, which will be more appropriate at the moment: termination of the criminal case or the application of punishment commensurate with the act. In practice, the burden of responsibility regarding the decision to apply the provisions of Art. 75 lies on the own conviction of the inquiry officer, judge or investigator.

Severity

It acts as one of the conditions for getting rid of responsibility. Crimes of minor gravity are understood as careless or deliberate violations of the law, for which the perpetrator faces no more than two years in prison, medium - no more than five. In addition, the law contains a clause regarding other actions. Active repentance can act as a condition for getting rid of responsibility even with a different degree of severity of the violation, if this is mentioned in the relevant article of the Code.

Cases of application of Art. 75

The list of crimes for which the perpetrator may be exempt from liability includes:

1. Kidnapping. If the subject voluntarily releases the victim, then no punishment will be applied to him.

2. The act of selling people, committed for the first time. If the perpetrator voluntarily gives freedom to the detained persons and assists in solving this crime (identifying other entities associated with the act), he will not be held accountable.

3. Bribery and commercial bribery. Exemption from these crimes is allowed if one or more conditions established by law are met. Among them:

• extortion of money from the culprit himself;
• assistance in investigation;
• notifying law enforcement agencies about impending crimes.

4. Preparation for a terrorist attack or assistance in terrorist activity. Relief from liability occurs when law enforcement agencies are notified in a timely manner about an impending violation of the law or in other ways preventing its commission.

5. Hostage taking. The perpetrator will not be held accountable if, at the request of the authorities or voluntarily, he releases the victim.

6. Participation in a criminal organization/community. You can avoid punishment by leaving the gang on your own and by providing assistance in uncovering its criminal activities.

7. Participation in illegal armed groups. Discharge from responsibility is permitted by voluntarily leaving the gang and surrendering weapons.

8. Illegal acquisition, transportation, storage and other prohibited actions with narcotic/psychotropic drugs and weapons. To be released from liability, the subject must surrender the subject of the crime and assist in the investigation.

9. Seizure of power, treason, espionage. The subject can be released from punishment if he promptly notifies the authorities about the crimes and prevents damage to the Russian Federation.

10. Participation in an extremist or other prohibited community. To relieve liability, the subject must voluntarily leave such an association.

11. Desertion committed for the first time and associated with difficult life circumstances or other unauthorized abandonment of a military unit.

12. False testimony in court. In this case, the condition for exemption from liability is a message about the unreliability of information before the court makes a decision.

Categories of economic violations

Exemption from liability is permitted if:

1. Failure to fulfill the agent's obligations or failure to pay taxes committed for the first time, if the damage to the budget has been fully compensated.
2. Banking activities prohibited by law.
3. Illegal receipt of a targeted government loan or misuse of funds.
4. Malicious non-payment of debt.
5. Illegal use of trademarks and other markings.
6. Illegal acquisition of property by organizers and competition participants to change their results.
7. Violations during the issuance of securities (in the absence of aggravating circumstances).
8. Deliberate evasion of information and violation of registration of rights to shares and other securities.
9. Offenses during bankruptcy proceedings.
10. Manipulation in the market and preventing the owners of securities from realizing their opportunities.
11. Failure to pay customs duties.
12. Illegal entrepreneurship in the absence of aggravating circumstances.

    

Exemption from liability for violations provided for in paragraphs 2 to 12 is allowed when they are committed for the first time and compensation for damage is fivefold.

Delimiting categories

As mentioned above, voluntary refusal is the passive behavior of the subject. However, in some cases it can be active:

1. When it can be expressed exclusively in active actions to eliminate the conditions created by persons to violate the law.
2. When it is committed at the stage of the completed assassination attempt.

It is worth saying, however, that the latter position cannot be considered indisputable, since a number of authors believe that at this stage only active repentance is permissible, but not voluntary refusal.

The latter is possible at the stage of a completed attempt only when there is a gap in time between the actions already committed and the consequences of them, or the subject, through his opposition, is able to interrupt the formation and development of a cause-and-effect relationship. Experts point out the obvious social conditionality of this situation. This position is justified by the fact that in this case the person’s actions are more consistent with the task of preventing the occurrence of consequences dangerous to society.