Commentary to Art. 300 of the Criminal Code
1. The objective side is expressed in the form of actions to illegally release a person suspected or accused of committing a crime from criminal liability by issuing a resolution on the illegal refusal to initiate a criminal case, termination of a criminal case or termination of criminal prosecution. These actions are performed against the suspect or accused. Illegal exemption from criminal liability by illegal refusal to initiate a criminal case or terminate a criminal case is possible on the grounds of the absence of an event or corpus delicti, in connection with reconciliation with the victim, etc. The termination of a criminal case entails the simultaneous termination of criminal prosecution. Illegal release from criminal liability by terminating criminal prosecution is possible on the grounds of non-involvement of the suspect or accused in the commission of a crime, as a result of an amnesty act, in connection with active repentance, with compensation for damage in accordance with Art. 76.1 of the Criminal Code in cases of crimes in the field of economic activity, etc. Exemption from criminal liability by terminating criminal prosecution on non-rehabilitating grounds in the absence of consent (objections) of the suspect or accused is also qualified under this article.
2. The crime is recognized as completed from the moment the relevant procedural decisions are made in the form of a resolution.
3. The subjective side is characterized by direct intent, implying the awareness that the release of a person from criminal liability is illegal.
4. Special subject: a person who, in accordance with the current criminal procedural legislation, can make an appropriate decision.
5. The adoption of a knowingly unjust (illegal) decision to terminate a criminal case (criminal prosecution) by a judge is qualified under Art. 305 CC.
Article 300. Illegal exemption from criminal liability
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- Article 300. Illegal exemption from criminal liability
Illegal release from criminal liability of a person suspected or accused of committing a crime by a prosecutor, investigator or person conducting an inquiry is
punishable by imprisonment for a term of up to seven years.
Commentary on Article 300
An object
of this crime - the interests of justice.
The public danger of a crime is expressed in discrediting the justice system when the basic principle of justice is violated - not a single innocent person should be convicted and not a single guilty person should escape punishment. At the same time, the authority of the court and law enforcement agencies is undermined, at the same time the population’s faith in social justice and equality of citizens before the law decreases, and those who have committed a crime develop a feeling of impunity and invulnerability before the law, which often leads to the commission of new crimes.
In many cases, the commission of these actions violates the legal rights and interests of the victims of the crime, which also contradicts Art. 6 of the Code of Criminal Procedure of the Russian Federation, which proclaims the protection of the rights and legitimate interests of persons and organizations who have suffered from crimes as the purpose of criminal proceedings. The above-mentioned legal rights and interests will be an additional object of the crime.
Objective side
crime is expressed in action - the illegal release from criminal liability of a person suspected or accused of committing a crime. A certain difficulty in establishing the crime in question lies in the fact that the disposition of Art. 300 of the Criminal Code of the Russian Federation, a combination of criminal law and criminal procedural terms is used.
Exemption from criminal liability is discussed specifically in the criminal law. At the same time, exemption from criminal liability is possible only in relation to specific procedural figures: the suspect or the accused
, which can only take place
after the initiation of a criminal case
(Articles 46 - 47 of the Code of Criminal Procedure of the Russian Federation). Therefore, for example, a form of illegal release from criminal liability of an accused or suspect cannot be the issuance of a decision to refuse to initiate a criminal case.
Under Art. 300 of the Criminal Code of the Russian Federation may only cover cases of unjustified termination of a criminal case or criminal prosecution of a person.
A resolution to terminate a criminal case (release of a specific person from criminal prosecution) will be considered legal only if it corresponds to it both in form and content. The crime under consideration will only be in the case where there were no legal grounds or conditions for the release of the guilty person from it or the procedural procedure for release was grossly violated.
When committing the crime in question, the official abuses his official powers in a special way. At the same time, in the decision to terminate the criminal case, the perpetrator either knowingly falsely states the factual circumstances of the case, or gives an incorrect assessment of these circumstances, in order to then give an incorrect legal assessment of the crime. If this was preceded by other abuses (for example, falsification of evidence, coercion to testify, illegal detention, etc.), then the act should be classified under the totality of crimes of Art. 300 and Art. Art. 303, 302, 301 of the Criminal Code of the Russian Federation, etc.
According to the legislative structure, the corpus delicti provided for in Art. 300 of the Criminal Code of the Russian Federation, is formal
and is considered
completed
at the time of the issuance (signing) of a resolution to terminate the criminal case with the release of the person from criminal liability or to terminate the criminal prosecution.
The presence of an unsigned resolution issued contrary to the law to terminate a criminal case or terminate a criminal prosecution with sufficient grounds indicates preliminary criminal activity, but not a completed crime.
Actions to illegally release a person from criminal liability are not limited, for example, to issuing a decision to terminate a criminal case. Actions to create conditions for the issuance of such a decision are also the objective side of the crime provided for in Art. 300 of the Criminal Code of the Russian Federation. For example, if an investigator, contrary to the law, does not bring charges within the prescribed period after the selection of a preventive measure, and then makes a decision to terminate the criminal case, his actions fall under the signs of Art. 300 of the Criminal Code of the Russian Federation <1>.
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<1> Review of judicial practice of the Supreme Court of the Russian Federation dated February 9, 2005 // Bulletin of the Supreme Court of the Russian Federation. 2005. N 7.
To assess an act as completed, it does not matter whether the suspect, accused, victim or prosecutor is notified of the termination of the case.
From the subjective side
the act is characterized by direct intent. The perpetrator understands that there are no legal grounds and conditions for releasing the suspect or accused from criminal liability, or that there are procedural obstacles to terminating the criminal case or criminal prosecution. However, wishing to illegally release a person from criminal liability, he makes an appropriate decision.
The motives for criminal behavior and its goals can be very diverse. They can be, in particular, the desire to help others, the request of friends, pity, revenge, careerist motives, selfish motives. They have no significance for qualification and can only be taken into account when assigning punishment.
The illegal release of a suspect or accused from criminal liability for a bribe must be qualified in conjunction with Art. 290 of the Criminal Code of the Russian Federation.
Subject
of this crime
is special
- the investigator or the person conducting the inquiry.
The head of the investigative body, when accepting a criminal case for its proceedings, has all the rights of an investigator and therefore can also be the subject of the crime in question.
Illegal release from criminal liability can also be carried out by a judge. However, the actions of the judge in such cases should not be qualified under Art. 300, and according to Art. 305 of the Criminal Code of the Russian Federation - issuing a knowingly unjust sentence, decision or other judicial act.
The direct perpetrator of a crime is a person who has made a deliberately illegal decision to terminate a criminal case or criminal prosecution. The manager who gave such an instruction, if the relevant signs are established, may be held liable as an instigator (Part 4 of Article 33 of the Criminal Code of the Russian Federation).
The crime in question is a special case of abuse of official position, therefore additional qualifications under Art. 285 of the Criminal Code of the Russian Federation is not required.
Second commentary to Art. 300 of the Criminal Code of the Russian Federation
1. The concepts of suspect and accused are given in criminal procedure legislation.
2. Such release from criminal liability will be considered illegal if it is carried out in gross violation of the norms of criminal and criminal procedural legislation, without taking into account the actual circumstances of the crime committed, or with a distortion of the truth.
An official, abusing his official powers, ignores these requirements and illegally releases a person from criminal liability, terminating the case. Forms of abuse can be very different: distortion of the actual circumstances of the incident; deliberately incorrect determination of the form of guilt, excluding criminal liability, etc.
The commission of this act is possible only at the stage of preliminary investigation; the crime is considered completed from the moment a decision is made to terminate the case.
3. The subjective side is characterized by direct intent.
4. The subjects of the crime are officials who have the right to be exempt from criminal liability: the prosecutor, the investigator and the person conducting the inquiry.
Commentary on Article 300 of the Criminal Code of the Russian Federation
1. The objective side of the crime is expressed in the illegal release from criminal liability of a person suspected or accused of committing a crime.
2. The concept of a suspect is given in Art. 46, the concept of the accused is in Art. 47 Code of Criminal Procedure of the Russian Federation.
3. Exemption from criminal liability is considered illegal if it is carried out in gross violation of the norms of criminal and criminal procedural legislation, without taking into account the actual circumstances of the crime committed, or with a distortion of the truth. All grounds for refusal to initiate a criminal case or its termination are specified in Art. 24 Code of Criminal Procedure of the Russian Federation. Refusal to initiate for other reasons is unacceptable. The termination of a criminal case simultaneously entails the termination of criminal prosecution. It is carried out on the same grounds as the refusal to initiate a criminal case, and, in addition, on the grounds specified in Art. 27 Code of Criminal Procedure of the Russian Federation.
4. An official, abusing his official powers, ignores these requirements and illegally releases a person from criminal liability by terminating the case. Forms of abuse can be very different.
The commission of this act is possible only at the stage of preliminary investigation. It is considered completed from the moment the decision to terminate the case is issued.
5. The subjective side of the crime is characterized by direct intent.
If what is mentioned in Art. 300 action was committed for a bribe, then what was done forms a set of crimes.
6. The subject of the crime is an official who has the right to be exempt from criminal liability: investigator; the person conducting the inquiry (investigator).
Commentary on Article 300 of the Criminal Code of the Russian Federation
Commentary edited by Rarog A.I.
1. The crime encroaches on the normal activities of the prosecutor’s office, preliminary investigation and inquiry bodies in carrying out criminal prosecution.
2. The objective side of the crime is the illegal release of the suspect or accused from responsibility.
3. A suspect is understood as a person against whom a criminal case has been initiated on the grounds and in the manner provided for by the Code of Criminal Procedure, or detained on suspicion of committing a crime, or to whom a preventive measure has been applied before charges are filed (Article 46 of the Code of Criminal Procedure). An accused is a person in respect of whom, in accordance with the procedure prescribed by law, a decision has been issued to charge him as an accused or an indictment (Article 47 of the Code of Criminal Procedure).
4. The objective side of the crime is expressed only in the form of action: issuing a decision to terminate the criminal prosecution or criminal case. The crime is completed from the moment the specified action is committed.
5. Illegality of release means the absence of criminal law or criminal procedural grounds for the release of a person. The Criminal Code provides grounds for four general (Articles 75 - 76, 78, 90) and 21 special types of exemption from criminal liability, as well as exemption on the basis of amnesty acts (Article 84).
6. The Criminal Procedure Code of the Russian Federation establishes the grounds for termination of a criminal case and termination of criminal prosecution (Articles 24 - 28). It is illegal to terminate a criminal case on grounds not provided for by law. An official, unlawfully releasing a suspect or accused from criminal liability, commits an abuse of power. Its forms can be different: intentional incorrect determination of the form of guilt, incorrect determination of the criminal legal basis for release in connection with active repentance, etc.
7. Issuing an illegal decision to refuse to initiate criminal proceedings is not a type of illegal exemption from criminal liability (Article 300 of the Criminal Code). At the stage of initiating a criminal case, there is neither a suspect nor an accused. Such a decision to refuse to initiate a criminal case, depending on specific circumstances, is either an abuse or an abuse of power.
8. If falsification of evidence is committed, then the actions of the perpetrator are qualified according to the totality of crimes provided for in Art. 300 and tsp 2 or 3 tbsp. 303 CC.
9. From the subjective side, a crime is committed with direct intent. Motives can be different: self-interest, compassion, etc.
10. Special subject of the crime - prosecutor, investigator, person conducting the inquiry. The actions of a judge who unlawfully released the defendant from liability are qualified under Art. 305 CC.
