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.
Commentary to Art. 75 Criminal Code
1. Exemption from criminal liability due to active repentance is possible only if the following conditions are met.
Firstly, this rule applies only to a person who has committed one or more crimes for the first time, for none of which he has previously been convicted, or when his previously committed acts do not entail legal consequences.
Secondly, the crimes committed must fall into the category of minor and moderate gravity (parts 2 and 3 of Article 15 of the Criminal Code).
Thirdly, 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. These include: surrender; assisting the offender in solving the crime he committed; voluntary compensation for damage caused; otherwise making amends for harm caused as a result of a crime (elimination of physical destruction or damage caused by one’s labor; making amends for moral harm caused: apologizing for the insult caused, refuting false information that discredits the honor and dignity of another person or undermines his reputation, etc.) .
Making amends for the harm caused by a crime in another way is a general formulation that can cover actions of a wide variety of factual content.
2. 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.
Exemption from criminal liability in connection with active repentance is possible provided that all the actions listed in it are performed or those of them that, taking into account specific circumstances, the person had an objective opportunity to commit (clause 4 of 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”).
3. 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 release 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 (grounds for release).
4. In part 2 of Art. 75 of the Criminal Code we are talking about special types of exemption from criminal liability, placed in the notes to some articles of the Special Part of the Criminal Code. Their identification is due to the fact that they, as a rule, apply to persons who have shown active repentance after committing crimes not only of moderate gravity, but also serious and even especially serious crimes; contain not an optional, but a mandatory type of exemption from criminal liability and require the manifestation of active repentance in a specific form specified in the Criminal Code.
Exemption from criminal liability for a crime of minor or medium gravity in cases specifically provided for by the notes to the relevant articles of the Special Part of the Criminal Code is carried out according to the rules established by such notes. At the same time, the fulfillment of the general conditions provided for in Part 1 of Art. 75 of the Criminal Code, not required (clause 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 No. 19).
5. On exemption from criminal liability on this basis, see also 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.”
The Supreme Court summarized the practice of exemption from criminal liability with the imposition of a court fine
On July 10, the Presidium of the Supreme Court of the Russian Federation approved a review of judicial practice of exemption from criminal liability with the imposition of a judicial fine (Article 76.2 of the Criminal Code of the Russian Federation).
The document, containing 13 legal positions, notes that during the period of validity of Art. 76.2, 104.4 and 104.5 of the Criminal Code (since 2016), the institution of a judicial fine has confirmed its relevance. Thus, in 2022, it was assigned to over 33 thousand persons, which is 1.6 times more than in 2017. This measure of a criminal legal nature was applied to persons who committed crimes of minor and medium gravity (theft, fraud, misappropriation or embezzlement, intentional destruction or damage to property, etc.).
The Supreme Court indicated that the courts generally correctly applied criminal and criminal procedural legislation regulating the grounds and procedure for release from criminal liability with the imposition of a judicial fine, guided by the explanations of the Plenum of the Supreme Court (resolution dated June 27, 2013 No.; dated December 22, 2015 No. dated February 1, 2011 No. and dated December 20, 2011 No.).
Practice of applying court fines
As stated in paragraph 1 of the review, the law does not prohibit the use of this measure in cases where the disposition of the incriminated article does not provide for causing damage or other harm as a mandatory feature of the objective side of the crime.
It is emphasized that in each specific case the court must not simply state the presence or absence of grounds for exemption from criminal liability, but make a fair and reasoned decision taking into account the entire set of data characterizing, among other things, the characteristics of the object of the criminal offense and the circumstances of its commission , actions taken by a person to compensate for damage or otherwise make amends for harm, a change in the degree of social danger of the act as a result of such actions, the identity of the perpetrator, as well as circumstances mitigating and aggravating punishment.
Paragraph 2 notes that, according to paragraph 21 of Resolution No. 19, methods of compensation for damage and reparations must be legal and not infringe the rights of third parties. However, they are not limited by law. Thus, the courts correctly assume that the harm caused by a crime can be compensated in any form that makes it possible to compensate for the negative consequences, including through a court fine.
In paragraph 3 of the review, the Supreme Court indicated that a person can also be released from criminal liability with the imposition of a court fine if material damage is not actually caused due to the fact that the crime was not completed due to circumstances beyond his control. In this case, the return of stolen property to the victim can be recognized as compensation for damage or reparation, provided that this was done voluntarily (clause 4 of the review). At the same time, the validity of the courts’ refusals to apply the provisions of Art. 76.2 of the Criminal Code, if the stolen items were seized during the arrest of a person, as well as during the investigation.
Paragraph 5 of the review emphasizes that property status and the lack of a source of income do not prevent exemption from criminal liability and the application of a court fine. At the same time, the courts proceed from the fact that the need to clarify the property (financial) situation is provided exclusively when determining the amount of a court fine, which corresponds to Art. 19 of the Constitution of the Russian Federation.
The Supreme Court also clarified that the reasons for the decision to satisfy the petition to terminate the criminal case and impose a court fine must provide the grounds for termination of the case and (or) criminal prosecution, as well as an indication of the consent of the suspect or accused to this. Thus, the courts found out whether the person in question compensated for the damage or otherwise made amends for the harm caused, and provided evidence in their decisions confirming this. If the courts of first instance did not comply with the relevant requirements of the Code of Criminal Procedure, higher authorities reasonably canceled such decisions (paragraph 6 of the review).
As stated in paragraph 7, the consent of the victim as a prerequisite for the release of a person from criminal liability under Art. 76.2 of the Criminal Code is not provided. The Supreme Court noted that in most cases, during the preliminary investigation, the victims’ opinion about this possibility was clarified, formalized in the form of petitions or written consent to terminate the case. If the victim objects to the termination of the case with the imposition of a court fine, the judge finds out the reasons for his position, and also evaluates the sufficiency of the measures taken by the accused to compensate for the damage or make amends for the damage to recognize the conditions provided for in Art. 76.2 CC.
Paragraph 8 of the review explains that the amount of a court fine cannot exceed half the maximum amount of the fine provided for in the relevant article of the Special Part of the Criminal Code. If a fine is not provided, then the amount of the court fine should not exceed 250 thousand rubles. The minimum amount of a court fine has not been established.
The Supreme Court recalled that paragraph 71 of Resolution No. 58 states that a judicial fine imposed on the basis of Art. 76.2 of the Criminal Code for a person released from criminal liability is not a criminal punishment, but refers to other measures of a criminal legal nature. Rules Art. 46 of the Criminal Code do not apply to the imposition and execution of a court fine. The amount of the latter is determined by the court, taking into account the gravity of the crime and the property status of the person exempted from criminal liability and his family, as well as taking into account the possibility of him receiving a salary or other income.
In paragraph 9 of the review, the Supreme Court indicated that the Criminal Code does not contain provisions regulating the procedure for imposing a court fine, as well as determining its final amount in relation to persons who have committed several crimes of minor and (or) medium gravity (forming their totality). At the same time, paragraph 16.1 of Resolution No. 19 emphasizes that the commission by a person for the first time of several crimes of minor and (or) moderate gravity does not prevent him from being released from criminal liability with the imposition of a court fine.
The Supreme Court confirmed the validity of the courts' position that a court fine is not a punishment imposed for a specific crime, but another measure of a criminal law nature, and the provisions of Art. 69 of the Criminal Code. Since exemption from criminal liability on the basis of Art. 76.2 of the Criminal Code is a one-time court decision in relation to one person, then taking into account all the circumstances that allow us to judge the existence of grounds and conditions for making such a decision, regardless of the number of crimes committed, instead of punishment, one single measure of a criminal legal nature is always applied in the form of a court fine. . When determining the amount of a judicial fine for several crimes, the courts, the Supreme Court emphasized, justifiably apply the sanction of the article establishing the most stringent liability.
Procedural features of imposing a judicial fine
As stated in paragraph 10 of the review with reference to paragraph 25.1 of Resolution No. 19, the consent of the suspect is a mandatory condition for the termination of the case in connection with the imposition of a court fine, since it relates to non-rehabilitative grounds. The Supreme Court emphasized that the courts reasonably refuse to satisfy the requests of investigators or interrogators if the accused has not confirmed consent.
Paragraph 11 notes that the participation of the prosecutor in the consideration of the relevant request of the investigator or interrogating officer is mandatory. At the same time, the Supreme Court emphasized that the opinion of the prosecutor who did not support the petition does not interfere with the application of Art. 76.2 of the Criminal Code, if the court determines the existence of legal grounds for termination of the case and (or) criminal prosecution with the imposition of a court fine.
When considering a petition, the court must make sure that the charge brought against a person for committing a crime of minor or medium gravity is justified, supported by the evidence collected in the case, the amount of damage or other harm is determined correctly, and the case file contains sufficient information to allow the court to terminate the case or criminal prosecution and appoint the accused receives a court fine (paragraph 12 of the review).
In cases where the court, when considering a petition, establishes other grounds for dismissing the case (both rehabilitating and non-rehabilitating), it refuses to satisfy the petition and returns it with the case materials to the head of the investigative agency or the prosecutor (paragraph 13 of the review).
At the same time, if during a preliminary hearing or trial in a criminal case received by the court with an indictment or resolution, the grounds provided for in Art. 25.1 of the Code of Criminal Procedure, and the parties file a petition to release the defendant from criminal liability on other grounds (for example, in connection with reconciliation of the parties or active repentance), then the court dismisses the case on the basis to which the defendant does not object.
If the court comes to the conclusion that it is impossible to terminate the case due to active repentance or reconciliation of the parties, then, in the absence of objections from the defendant, it terminates it and imposes a court fine.
Lawyers assessed the practical significance of the legal positions of the Supreme Court
Lawyer and head of criminal legal practice Artem Karakasyan noted that over the three years of application of the institution of a judicial fine, controversial issues have accumulated, and therefore the review is of particular importance from the point of view of adjusting practice and expanding the scope of application of this measure.
“The Supreme Court has regulated the imposition of a judicial fine in cases where a person is accused of committing a formal crime, i.e. without the occurrence of specific harmful consequences and the presence of a victim,” he explained. – Some courts in such cases, for example under Art. 327 of the Criminal Code “Forgery, production or sale of counterfeit documents, state awards, stamps, seals, forms”, they refused to satisfy requests for the application of a court fine, because they believed that in the absence of a victim it is impossible to make amends for the harm caused by the crime.”
The expert added that the position of the Supreme Court was based on the Determination of the Constitutional Court of the Russian Federation of October 26, 2022 No. 2257-O that the absence of a direct indication in the Criminal Code of the onset of specific consequences does not mean that the commission of a crime did not cause any harm or did not entail the emergence of a real threat of causing it. “In this regard, the Supreme Court rightly indicated that the commission of a formal crime by a person does not exclude the application of the rules on a judicial fine to him,” Artem Karakasiyan emphasized.
Another important clarification, according to the lawyer, concerns the methods of compensation for damage and making amends for harm, which, as indicated in the review, are not limited by law. “The courts can therefore take into account any measures taken by the defendant to minimize the harm caused to him,” he believes. “It must be taken into account that the sufficiency of measures to make amends for damage is an evaluative concept, determined solely at the discretion of the court.” The expert added that this could provoke a surge in appeals to higher authorities to review sentences due to the subjective approach of the courts.
Artem Karakasyan also noted that the provisions of the review corrected the practice regarding the imposition of a judicial fine in the absence of the consent of the victim. “The Judicial Collegium for Criminal Cases of the Supreme Court reasonably concluded that in order to apply the norms of Art. 76.2 of the Criminal Code does not require the consent of the victim if the requirements for imposing a judicial fine are met. Thus, the Court recognized the application of this norm by analogy with the norm on exemption from criminal liability in connection with reconciliation with the victim as incorrect.”
Lawyer at Feoktistov and Partners Law Firm Ruslan Dolotov also considers the legal positions included in the review to be extremely important. He emphasized that the Presidium of the Supreme Court unequivocally answered a very controversial issue, which caused a lot of discussion in the criminal law doctrine, regarding exemption from criminal liability with the imposition of a judicial fine for several crimes at once: “The court does not first impose a judicial fine for each act and does not add it up.” final fine” by analogy with the rules for assigning punishment for a set of crimes. It is clarified that in this situation, one judicial fine is imposed regardless of the number of acts committed, the amount of which is determined based on the sanction that establishes the most severe liability for the crime included in the aggregate.”
Also, the lawyer added, the review provides a clear answer to the question of how to apply Art. 76.2 of the Criminal Code with the simultaneous existence of grounds for exemption from criminal liability under other articles of the Code. Of fundamental importance, according to Ruslan Dolotov, is the position that exemption from liability with the imposition of a judicial fine can be applied even in cases where we are talking about an attempted crime and the damage was not actually caused. This question, the expert believes, is also relevant for Part 2 of Art. 76.1 CC; he expressed the hope that the version of application of Art. presented in the review. 76.2 of the Criminal Code in relation to attempted crimes will serve as an impetus for solving a similar problem for this article.
“Unfortunately, the review does not even hint that Art. 76.2 of the Criminal Code can be applied when the category of gravity of the crime changes. The Resolution of the Plenum of the Supreme Court dated May 15, 2022 No. 10 clearly states that the application of Part 6 of Art. 15 of the Criminal Code may entail release from punishment with reference to Art. 75 and 76 of the Code. In such a situation, despite the controversial approach (Articles 75 and 76 of the Criminal Code cannot serve as a basis for exemption from punishment only, since they deal with exemption from criminal liability in general), the non-extension of the “jurisdiction” of Part 6 of Art. 15 at station 76.2 of the Criminal Code looks like an extremely unsystematic step,” the lawyer concluded.
Lawyer of the Tyumen Region Administration Ilya Slivko emphasized that the use of a judicial fine in Russia as a punishment has become widespread. “Courts very actively use this form of termination of criminal proceedings, and I cannot say that this is bad,” he believes. – As always, excesses occur when law enforcement officers persuade people to admit guilt, not always for a correctly qualified crime and proven, promising to terminate the criminal case with the imposition of a court fine. They present the situation as a benefit that only they can provide. The lawyer’s task in this case is to explain to the client all the “pros” and “cons.” The biggest disadvantages, according to the expert, are the fact that a person is brought to criminal liability and further consequences, for example, in the form of a claim for damages.
Ilya Slivko added that sometimes law enforcement officers, prosecutors and courts use a court fine as a “means of trade” in cases where the evidence of guilt is very weak. “Such precedents also take place. But I would like to note once again that in the general justice system in Russia, which has a lot of questions and a huge number of problems, the practice of applying a judicial fine is exclusively positive,” he noted.
According to the lawyer, in his practice, only three cases ended in the imposition of a court fine - under Art. 134, 176, 327 CC. In the first case, the parties in court announced the termination of the criminal case for reconciliation of the parties. However, the prosecutor was against it, arguing that the crime was committed against sexual integrity. “The very fact that a crime was committed in the area of sexual integrity cannot be a basis for refusing to terminate a criminal case pending reconciliation of the parties. At the request of the prosecutor, the case was dismissed by the court with a judicial fine of 40 thousand rubles, and neither I, nor the victims, nor the defendant applied for this, explained Ilya Slivko. – Taking into account the explanations of the Supreme Court given in paragraph 13 of the review, I would file an appeal and focus the court’s attention on the defendant’s disagreement with the termination of the case with the application of a court fine. In that situation, I had to agree with the court’s decision.”
In another case, a request for a judicial fine was filed at the trial stage. “This was a way out for both the defense and the prosecution, since there was no evidence of the crime, there were many doubts about guilt, the total period of criminal proceedings in the case was already more than three years, and it was clear that the defendant would still be convicted, however a verdict could still be months away. Such a long period of proceedings did not allow my client to live and work normally, and we had to agree to terminate the case with the application of a court fine,” the expert noted.
In the third case, the lawyer explained that the request to dismiss the case with the application of a court fine was made at the preliminary investigation stage, and with the consent of the prosecutor's office, the court dismissed the case.
Ilya Slivko named paragraphs 2, 7, 11, 13 as particularly interesting from a practical point of view of the review. “So, paragraph 2 explains the possibility of compensating for damage in any form, and not only through compensation for material damage. Lawyers actively use the practice of compensation for damages for non-property crimes - for example, under Art. 228 of the Criminal Code, where there are no victims, by sending money to orphanages and charitable foundations. But the review paragraph under consideration provides an example of socially useful work. I have never seen this in my practice and have not seen similar examples from my colleagues,” he explained.
The expert also considers it important to clarify that the opinion of victims and the prosecutor does not have to be taken into account in order to apply punishment in the form of a court fine. “Often the courts follow the lead of both prosecutors and victims when considering the issue of both imposing a punishment and applying a court fine,” noted Ilya Slivko. “In the review under consideration, the Supreme Court again drew the attention of the courts to the need, first of all, to comply with the law, and secondly, to take into account the opinion of the prosecutor.”
According to the lawyer, the situation with the opinion of the victims looks a little different. “Previously, one of the main non-rehabilitative grounds for termination of a case was the reconciliation of the parties, where the opinion of the victims was taken into account. This created conditions when victims bargained with defendants for the right to dismiss the case, citing amounts that did not correspond to the actual damage. Now, with the possibility of termination of the case with the application of a court fine, the vicious practice can be eradicated,” Ilya Slivko emphasized.
According to the lawyer, the review will help improve the practice of applying court fines and will make it easier for lawyers to convince the courts of the need to terminate a criminal case for one reason or another.
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.
