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.
- Article 74. Cancellation of a suspended sentence or extension of the probationary period
- Article 76. Exemption from criminal liability in connection with reconciliation with the victim
Commentary to Art. 75 of the Criminal Code of the Russian Federation
Exemption from criminal liability means a decision expressed in an official act of a competent state body to release a person who has committed a crime from the obligation to be convicted by a court and undergo state coercive measures. In this case, criminal liability does not find its realization either in the public condemnation of the perpetrator, or in punishment, or in other measures of a criminal legal nature.
The social significance of the institution of exemption from criminal liability is that the state places trust in the person who committed the crime and counts on his law-abiding behavior in the future. Release from criminal liability is not the rehabilitation of the accused or suspect or their forgiveness (with the exception of an amnesty). It rather testifies to the provision of leniency on the part of the state to the guilty person, given the possibility of achieving the goals of criminal legislation without convicting the guilty person.
The general basis for releasing a person who has committed a crime from criminal liability is the inappropriateness of bringing him to court and applying other measures of a criminal legal nature to him. This general basis is specified in relation to certain types of exemption from criminal liability. But this basis can only take place under certain conditions. Among them it is necessary to highlight the following.
First. As a general rule, exemption from criminal liability is possible only if a crime is committed for the first time of minor or moderate gravity. These indicators may, if there are other grounds, indicate that both the act and the personality of the perpetrator do not pose a great danger to society. Second. As a general rule, a person who has committed a crime must, in one form or another, established by law, make amends for his guilt. Third. Exemption from criminal liability, regardless of the category of crime, can only occur due to the expiration of the statute of limitations. Fourth. Exemption from criminal liability is possible due to an act of amnesty. However, amnesty in the Criminal Code is not classified as a basis for exemption from criminal liability, but is considered in a separate chapter, since it applies to an indefinitely large circle of persons who meet the conditions of the amnesty.
Exemption from criminal liability on the grounds provided for by the Criminal Code of the Russian Federation does not mean declaring a person innocent of committing a crime. This also does not mean that the crime committed in accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation is insignificant and, therefore, there is no corpus delicti. Exemption from criminal liability is also not related to the presence of circumstances excluding the criminality of the act. This institution applies to persons who have committed a crime, but under such circumstances and conditions when there is the possibility of non-application of measures of criminal repression.
A procedural form of exemption from criminal liability is a resolution of the inquirer with the consent of the prosecutor, as well as an investigator with the consent of the head of the investigative body or a judge, or a court ruling to terminate a criminal case, if one has been initiated, or a resolution of the inquiry body, the inquirer or investigator to refuse to initiate a criminal case. case, if the decision to release from criminal liability was made at the stage of pre-investigation verification of the circumstances of the crime. Moreover, in some situations, the above authorities have the right to apply the institution of exemption from criminal liability (for example, Article 75 of the Criminal Code of the Russian Federation), in other cases the application of this institution is the responsibility of these authorities (for example, Article 78 of the Criminal Code of the Russian Federation).
The Criminal Code of the Russian Federation knows the following types of exemption from criminal liability:
1) in connection with active repentance (Article 75);
2) in connection with reconciliation with the victim (Article 76);
3) due to the expiration of the statute of limitations (Article 78).
All of the above types of exemption from criminal liability are unconditional: the exemption is final and cannot subsequently be canceled for any reason.
The commented article regulates the issues of exemption from criminal liability in connection with active repentance.
In accordance with Part 1 of Art. 75 of the Criminal Code of the Russian Federation, a person who has committed a crime of minor or moderate gravity for the first time may be released from criminal liability if, after committing the crime, he voluntarily confessed, contributed to the detection of the crime, compensated for the damage caused or otherwise made amends for the damage caused as a result of the crime, and as a result of active repentance has ceased to be socially dangerous.
Thus, this norm defines the conditions under which a person can be released from criminal liability on the grounds in question.
First of all, such a condition is the fact of committing a crime for the first time. This means that the person has not previously committed a crime at all or has been released from criminal liability for a crime committed or was previously convicted, but the criminal record was withdrawn or expunged in the manner prescribed by law and, therefore, there are no legal consequences of the criminal record.
As noted in paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation,” a person who has committed one or more crimes for no reason should be considered to have committed a crime of minor or medium gravity for the first time. of which he has not previously been convicted, or when the previous sentence against him has not entered into legal force.
A person cannot be released from criminal liability due to active repentance if he was previously convicted of any crime and has a criminal record. It does not matter what type and amount of punishment it was sentenced to (fine, correctional labor, suspended sentence, imprisonment).
In practice, the question also arises of whether a person can be considered to have committed a crime for the first time if he was previously released from criminal liability on non-rehabilitative grounds, since in this case the crime objectively committed is not the first. Here it should be noted that this is not the first time that recognizing a person as having committed a crime is associated with certain legal consequences. However, upon termination of a criminal case, the person is considered not to have a criminal record and, when deciding on the possibility of terminating a new criminal case in connection with reconciliation with the victim, must be recognized as having committed a crime for the first time.
Further, exemption from criminal liability due to active repentance is possible only if the crime committed falls into the category of minor or moderate gravity. The commission of a crime of another category excludes exemption from criminal liability on the basis of Part 1 of Art. 75 of the Criminal Code of the Russian Federation.
The next mandatory condition with which the law connects the possibility of exemption from criminal liability is the positive post-criminal behavior of the perpetrator. If the above two conditions are met, release can only take place when the offender has committed one or more actions specified in the law, namely: confessed, contributed to the discovery of the crime, compensated for the damage caused, or otherwise made amends for the harm caused as a result of the crime.
Confession must be voluntary, which means a conscious active action of the person who committed the crime associated with contacting the police, the prosecutor's office or the court with a statement about what he has done. Confession must not be made under the influence of coercion or a forced situation, when sufficient evidence of his guilt has been collected against the perpetrator. In addition, surrender will be voluntary when the investigative authorities knew nothing about the person who committed the crime or about the crime itself. At the same time, it should be borne in mind that the law does not connect the presence of voluntariness with the motive of a person’s behavior, as well as with the circumstances that preceded the confession or influenced the decision made.
To terminate a criminal case due to active repentance, it is necessary that the person who committed the crime voluntarily confess and help solve the crime. In cases where any of the conditions are absent and instead of confession and assistance in solving a crime, for example, only sincere repentance takes place, the application of Art. 28 of the Code of Criminal Procedure of the Russian Federation is impossible, since the circumstances specified in the law, which together allow us to draw a conclusion about active repentance, will only be circumstances mitigating the punishment.
Contributing to the solution of a crime means taking actions aimed at fully solving the crime, including the discovery of valuables obtained as a result of the crime. Facilitation will be, for example, an indication in the confession of persons who took part in the commission of the crime together with the perpetrator, the location of the instruments and weapons of the crime, stolen property, a corpse and other actions that are important for the complete, objective and prompt disclosure of the crime.
Compensation for damage caused and making amends for harm can take place both in the form of payment of an agreed sum of money, and in eliminating damage in kind (transferring to the victim other equivalent property instead of damaged or destroyed, repairing damaged property, clothing, vehicles, etc.). It is possible to make amends for moral damage, to make a public apology to the offended person, to refute the data that served as the basis for slander, etc.
To be released from criminal liability on the grounds under consideration, it is important that all the actions of the perpetrator after the commission of the crime give the court the opportunity to come to the conclusion that the person has lost the sign of public danger.
If all the conditions specified in Part 1 of Art. 75 of the Criminal Code of the Russian Federation, the competent authorities have the right, but are not obliged, to decide to release the perpetrator from criminal liability.
Part 2 of Art. 75 of the Criminal Code of the Russian Federation establishes the possibility of applying exemption from criminal liability in connection with active repentance and in relation to persons who have committed serious and especially serious crimes. But such release is possible only in cases specifically provided for by the notes to the relevant articles of the Special Part of the Criminal Code of the Russian Federation (kidnapping - Art. 126 of the Criminal Code of the Russian Federation; commercial bribery - Art. 204 of the Criminal Code of the Russian Federation; terrorist act - Art. 205 of the Criminal Code of the Russian Federation; hostage taking - Art. 206 of the Criminal Code of the Russian Federation; organization of an illegal armed group or participation in it - Article 208 of the Criminal Code of the Russian Federation, etc.).
Judicial practice under Article 75 of the Criminal Code of the Russian Federation
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 15, 2019 N 127-UD18-19
- August 17, 2010 by the Evpatoria City Court under Part 1 of Art. 121 of the Criminal Code of the Republic of Ukraine to 5 years in prison using Art. The Criminal Code of Ukraine is conditional with a probationary period of 3 years; - April 29, 2011 by the Evpatoria City Court under Part 2 of Art. 185, art. Criminal Code of the Republic of Ukraine to 5 years 6 months imprisonment,
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated November 22, 2018 N 201-APU18-46
Lawyer Zaitsev, in an appeal filed in defense of the convicted Davydov, believes that the court’s conclusions set out in the verdict do not correspond to the actual circumstances of the criminal case, the court violated the norms of the criminal procedural law and incorrectly applied the criminal law. In support, referring to the results of psychological and linguistic examinations, the defense attorney argues that the text posted by Davydov on February 3, 2016 on the Internet does not contain any signs of justifying terrorism, it does not contain any indications of violence, intimidation of the population, illegal actions, or the practice of influencing decision-making by authorities, Davydov’s intention to justify terrorism has not been established. There is no public danger from this text, as evidenced by its availability in the public domain for a long time, including after the initiation of a criminal case. The fact that the items (documents) were examined on December 29, 2016 is questionable; the protocol of this investigative action may have been falsified. The reference in the protocol to changing the password for the page "..." is refuted by information received from VKontakte LLC. The inspection of objects (documents) was carried out with the participation of Davydov as a witness in the absence of a defense lawyer; the right to use the services of a lawyer was not explained to Davydov, which indicates the inadmissibility of the protocol of inspection of objects (documents) dated December 29, 2016 as evidence. The punishment imposed on Davydov is unfair due to excessive severity. The court did not take into account the small gravity of the crime, Davydov’s minor age, his emotional state during the commission of the crime, exemplary behavior, and awareness of his mistakes before the initiation of a criminal case. The court had the opportunity to apply the provisions of Art. Criminal Code of the Russian Federation or Art. Art. , 76.2 of the Criminal Code of the Russian Federation, which has not been done. The defense lawyer asks to cancel the verdict regarding Davydov’s conviction under Part 1 of Art. 205.2 of the Criminal Code of the Russian Federation (as amended by Federal Law No. 420-FZ of December 7, 2011) and acquit the convicted person.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated March 12, 2020 N 223-APU20-1
If it is impossible to acquit the defendant in full, lawyer Omashev asks to stop the criminal prosecution of Abdurakhmanov in terms of his illegal possession of five F-1 grenades and five fuses for them due to their voluntary extradition, that is, according to the note to Art. 222 of the Criminal Code of the Russian Federation and on the grounds provided for in Part 2 of Art. 28 of the Code of Criminal Procedure of the Russian Federation and Part 2 of Art. of the Criminal Code of the Russian Federation (in connection with active repentance), and assign him a fair punishment.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 3, 2019 N 117-UD19-4
Meanwhile, in accordance with the explanations contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N (as amended on November 29, 2016) “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability”, including 1 tbsp. and in Art. 76.2 of the Criminal Code of the Russian Federation, damage should be understood as property damage that can be compensated in kind (in particular, by providing property to replace lost property, repair or correction of damaged property), in monetary form (for example, compensation for the cost of lost or damaged property, treatment costs) .
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 23, 2019 N 53-APU19-8
- convicted Mikitin V.R. indicates that he does not agree with the sentence due to its severity, as well as with the imposition of an additional punishment in the form of a fine and the collection of procedural costs from him; supports the arguments of the appeal presentation of the prosecutor in part that the punishment for the totality of crimes should be assigned to him according to the rules of Part 2 of Art. The Criminal Code of the Russian Federation, at the same time, believes that he was given an excessively severe punishment, and asks to reduce the punishment by applying Art. Criminal Code of the Russian Federation; the court did not take into account that he voluntarily stopped engaging in criminal activities a year and a half before his arrest; believes that for each of the crimes he committed, the court imposed almost the maximum possible punishment, taking into account the unfinished nature of the crimes and mitigating circumstances; believes that his detention worsened the situation of his family, for whom he provided financially; believes that his confession and active assistance in solving the crime are criteria for active repentance provided for in Art. Criminal Code of the Russian Federation; argues that the reason for his actions was not to obtain material gain, but to gain access to the drugs he used; asks to exclude from the sentence the imposition of an additional penalty in the form of a fine and to exempt him from the collection of procedural costs;
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 14, 2017 N 60-UD17-3
accused of committing a crime under Part 3 of Art. 327 of the Criminal Code of the Russian Federation, terminated on the basis of Part 1 of Art. 28 of the Code of Criminal Procedure of the Russian Federation in connection with active repentance and in accordance with Part 1 of Art. The Criminal Code of the Russian Federation exempts him from criminal liability.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 14, 2017 N 56-APU17-3sp
Grounds for the release of Skirdenko E.A. from criminal liability in connection with active repentance is not available, since by the verdict of the jury he was found guilty of committing especially serious crimes, for which the application of the provisions of Part 2 of Art. The Criminal Code of the Russian Federation is not provided for by criminal law.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated January 16, 2018 N 203-APU17-32
Provided by Art. Art. , 76.2 of the Criminal Code, there are no grounds for releasing Myakushev from criminal liability in connection with active repentance and in connection with the imposition of a court fine, as raised in the appeals of lawyers Chapanov and Tugushev, from the case materials.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 10, 2018 N 127-UD17-25
Vinnik Dmitry Alekseevich, ... convicted by the verdict of the Krasnogvardeysky District Court of November 28, 2013 under Part 3 of Art. 185 of the Criminal Code of Ukraine to 3 years in prison, on the basis of Art. Art. , the Criminal Code of Ukraine was released from serving his sentence with probation, by a resolution of the same court dated June 11, 2014, the sentence was brought into compliance with the legislation of the Russian Federation, it was decided to consider him convicted under paragraph “b” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation to 3 years in prison, on the basis of Art. The Criminal Code of the Russian Federation is conditional with a probationary period of 2 years,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 25, 2019 N 5-APU19-56
Arguments of the convicted Solovyov I.N. about the need to release him from criminal liability in connection with active repentance in accordance with Art. The Criminal Code of the Russian Federation is untenable. In accordance with Part 1 of Art. Under the Criminal Code of the Russian Federation, a person who has committed a crime of minor or moderate gravity for the first time may be released from criminal liability if, after committing the crime, he voluntarily confessed, contributed to the detection and investigation of the crime, made amends for the harm caused by the crime and, due to active repentance, ceased to be socially dangerous. According to Part 2 of Art. of the Criminal Code of the Russian Federation, a person who has committed a crime of a different category is released from criminal liability only in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 15, 2020 N 1-UD20-9-A2
All the witnesses interrogated at the court hearing, including those whom the convict mentions in the complaint, informed the court of the source of their knowledge of certain circumstances of the case that were clarified from them, indicating that they were their eyewitnesses, or know from the words of the persons named by them. In this situation, the court had no reason to regard their testimony as falling within the scope of Part 2, Clause 2 of Art. Criminal Code of the Russian Federation.
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Conditions for termination of a case based on active repentance
- Part 1 75 of the Criminal Code
if the crime is committed for the first time
- Part 1 75 of the Criminal Code
crime of minor or medium gravity category only
- Part 1 75 of the Criminal Code
if there is a confession
- Part 1 75 of the Criminal Code
if there is active support
- Part 1 75 of the Criminal Code
if compensation has been made
- Part 1 75 of the Criminal Code
if compensation has been made
- Part 1 75 of the Criminal Code
if the person is no longer dangerous
Cases of other categories
- part 2 75 of the Criminal Code
category above average, termination by special instructions
Selection of materials
Active repentance
, conditions and mechanism for termination of cases on the basis of
75 CC
PLENUUM of the Supreme Court
Plenum
on the application of norms on the termination of criminal cases dated June 27, 2013. N 19
Article 75 of the Criminal Code. Exemption from criminal liability due to active repentance
1) May be exempt from criminal liability:
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— clause 2
Plenum No. 19 who is considered to have committed for the first time in Articles
75
-
76.2 of the Criminal Code
- a person who has committed for the first time;
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- Part 1 28 Code of Criminal Procedure
termination of cases of minor and medium gravity under
Article 75 of the Criminal Code
- a crime of minor or medium gravity;
if after the commission of a crime the person concerned,
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— clause 4
Plenum No. 19, if confession is impossible, it is taken into account
—
turned himself in voluntarily,
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- Part 1 75 of the Criminal Code
condition for termination of the case active assistance
- paragraph 30
Plenum No. 58 what actions are interpreted as active contribution
— clause 5
Plenum No. 19 active assistance only in connection with one’s own crime
- Art.18
N 144-FZ, a group member is released with cooperation
Mitigating circumstance
Active promotion
, mitigating circumstance (
clause “and” part 1 61 of the Criminal Code
)
— contributed to the detection and investigation of the crime,
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—
clause 2.1
of Plenum No. 19, what is meant by damage in
part 1 75
, and how it is compensated
- compensated for the damage
,
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- clause 2.1
Plenum No. 19 making amends for the purposes of
Part 1 75 of the Criminal Code
- or otherwise making amends for the harm caused by this crime,
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— clause 4
Plenum No. 19 a person must cease to be socially dangerous
- and, as a result of active repentance,
ceased to be socially dangerous.
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- Part 2 28 Code of Criminal Procedure
termination for serious reasons only in special cases
— clause 7
Plenum No. note in the norm of the Criminal Code does not require compliance with the conditions of
75 of the
Criminal Code Active repentance without voluntary extradition
No item issuance
, active repentance is also possible (
Article 75 of the Criminal Code
)
2) A person who has committed a crime of another category is exempt from criminal liability only in cases specifically provided for by the relevant articles of
the Special Part of the Criminal Code .
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