Exemption from criminal punishment: concept and types

Exemption from criminal punishment means certain concessions for the convicted person.
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Concepts and types of liberation

The concept of exemption from punishment in criminal law is an independent part that the court takes into account after the main sentence is passed. Guided by the points that make it possible to apply articles to the convicted person under which leniency may be granted to him, the court decides on the advisability of such a decision.

In essence, release from punishment implies the achievement of the goal, which is expressed in the fact that the state saves time and resources necessary for the implementation of isolation and provides the prisoner with the opportunity to reform and thus encourages him if the prisoner, by his behavior and actions, gives reason to believe that he will reform and without restriction of freedom.

Today, a convicted person can count on certain types of evasion from criminal liability.

grant of parole;
in connection with a change in the degree of public danger to the person of the convicted person or the situation;
because of illness;
deferment;
due to the expiration of the statute of limitations;
amnesty;
pardon.

The letter of the law says that any application of the law must be justified, that is, it can only be applied if there are appropriate grounds. In the event that it is necessary to carry out a procedure for the release of a person, a number of laws are applied that allow this procedure to be carried out. That is, in order to release a convicted person, it is necessary to determine what changes have occurred to him and, based on these facts, apply an article of the law that allows him to change the sentence.

Chapter 11. Exemption from criminal liability.

Article 75. Exemption from criminal liability in connection with active repentance. 1. A person who has committed a crime of minor 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 harm caused as a result of the crime. 2. A person who has committed a crime of another category, subject to the conditions provided for in part one of this article, may be released from criminal liability only in cases specifically provided for by the relevant articles of the Special Part of this Code.

Commentary on Article 75

Article 76. Exemption from criminal liability in connection with reconciliation with the victim. A person who has committed a minor crime for the first time may be released from criminal liability if he has reconciled with the victim and made amends for the harm caused to the victim.

Commentary on Article 76

Article 76.1. Exemption from criminal liability in cases of crimes in the sphere of economic activity

1. A person who has committed a crime under Articles 198-199.1 of this Code for the first time is exempt from criminal liability if the damage caused to the budget system of the Russian Federation as a result of the crime is compensated in full.

2. A person who has committed a crime for the first time under Article 1702, part one of Article 171, parts one and one1 of Article 1711, part one of Article 172, articles 176, 177, part one of Article 178, parts one - three of Article 180, parts one and two Article 185, Article 1851, Part One of Article 1852, Part One of Article 1853, Part One of Article 1854, Part One of Article 1856, Part One of Article 191, Article 192, Parts One and One1 of Article 193, Parts One and Two of Article 194, Articles 195 - 197 and 1992 of this Code, is exempt from criminal liability if it compensates for the damage caused to a citizen, organization or state as a result of the commission of a crime, and transfers to the federal budget monetary compensation in the amount of twice the amount of damage caused, or transfers to the federal budget income received in as a result of the commission of a crime, and monetary compensation in the amount of twice the amount of income received as a result of the crime, or transferred to the federal budget an amount of money equivalent to the amount of losses that were avoided as a result of the crime, and monetary compensation in the amount of double the amount of losses that were managed avoid as a result of committing a crime, or transferred to the federal budget an amount of money equivalent to the amount of the committed act provided for by the relevant article of the Special Part of this Code, and monetary compensation in the double amount of this amount.
Article 76.2.
Exemption from criminal liability with the imposition of a judicial fine A person who has committed a crime of minor or medium gravity for the first time may be released by the court from criminal liability with the imposition of a judicial fine if he has compensated for the damage or otherwise made amends for the harm caused by the crime.

Article 77. Repealed. — Federal Law of December 8, 2003 N 162-FZ.

Article 78. Exemption from criminal liability due to the expiration of the statute of limitations. 1. A person is released from criminal liability if the following periods have expired from the date of commission of the crime: a) two years after the commission of a crime of minor gravity; b) six years after committing a crime of average gravity; c) ten years after the commission of a serious crime; d) fifteen years after the commission of a particularly serious crime. 2. The statute of limitations is calculated from the day the crime was committed until the court verdict enters into legal force. If a person commits a new crime, the statute of limitations for each crime is calculated independently. 3 . The running of the statute of limitations is suspended if the person who committed the crime evades the investigation or trial or evades payment of a court fine imposed in accordance with Article 762 of this Code. In this case, the running of the limitation period is resumed from the moment of detention of the specified person or his surrender. 4. The issue of applying the statute of limitations to a person who has committed a crime punishable by death or life imprisonment is decided by the court. If the court does not consider it possible to release the specified person from criminal liability due to the expiration of the statute of limitations, then the death penalty and life imprisonment are not applied. 5. Statutes of limitation do not apply to persons who have committed crimes against the peace and security of humanity provided for in Articles 353, 356, 357 and 358 of this Code.

Commentary on Article 78

Grant of parole

If positive changes occur to him while a prisoner is serving his sentence, then his remaining sentence can be changed to a more lenient one. During his stay in a correctional institution, a prisoner must distinguish himself by exemplary behavior, compensate for material damage, if it was assigned, and spend a certain time in a correctional institution, depending on the qualifications of his case. After a person is released, law enforcement control is established over him until the full time of departure has expired.

During this time, it is impossible to violate the law, since then for the state the person will be considered uncorrected, which means that the lenient sentence will be canceled and he will have to be served in a correctional institution.

Replacing the remaining time with a softer look. In the legislation, there are different degrees of qualification of a criminal case, for example, a serious article or an article of moderate gravity.

Colony-settlement.
General regime colony.
A maximum security colony.

Each institution has its own rules; in a maximum security colony, the rules of conduct for a prisoner are strict: he does not have the right to private meetings or the right to frequently receive parcels.

When serving part of the assigned period of isolation, as well as when certain grounds arise, the prisoner has the right to change the type of responsibility. If the court decides that the data provided may allow the convict to serve correction under more lenient conditions, then the convict is transferred to a correctional institution of the appropriate type, and service continues.

In essence, the prisoner receives grounds for easing the conditions of detention and more frequent meetings with relatives, but the total term determined by the court as a measure for his crime remains the same.

Criminal early release from punishment

Conditional early release is the cessation of the application of criminal punishment, which is associated with the achievement of the goals of punishment, before serving the established sentence, with the establishment of a certain probationary period for the released person, during which this person must prove his correction. If the terms of the probationary period are violated, the previously assigned punishment is resumed.

In most countries, parole is used only in cases with punishments involving the deprivation of liberty of the convicted person. Conditional early release can be partial (the execution of an additional punishment continues) or complete (the convicted person is released from the main and additional punishment).

Circumstances favorable to parole:

exemplary behavior - compliance with the rules of the regime of serving a sentence, the requirements of the administration of the correctional institution, amateur activities, participation in the work of public organizations, regular attendance at training sessions, maintaining order in the correctional institution, the availability of incentives;
honest attitude to work - conscientious work while in a correctional institution, adherence to labor discipline, fulfillment of assigned production tasks, desire to obtain professional qualifications, etc.;
recognition of one's own guilt, fairness of punishment;
compensation for damage caused to the victim;
the desire to start a new life after release, to break with past criminal connections;
the presence of a family, children, other relatives with whom the convict will live after release and for whom care is required;
the possibility of employment in a business structure, at a specific enterprise, etc.

Exemption from liability due to illness

During the term of serving a sentence, a person is kept in fairly harsh conditions, as a result of which his health may deteriorate, both physical and mental.

Softer types.
He may be entitled to a complete cessation of persecution.

In the case of mental disorders, a person is most often transferred to special psychiatric hospitals, since such a patient poses a danger to society, although he may not realize it.

In other cases, a person is released because a correctional colony is not suitable for housing people with disabilities, and also if it is difficult for them to receive the necessary treatment that is prescribed. A prisoner with special illnesses may not be released, but the sentence may be commuted to a more lenient form if the illness suggests such a need.

The possibility of replacing the term with a more lenient one is always determined by the court, this case is no exception. To carry out the process, the prisoner must comply with a certain procedure established by the state: submit a request to replace the punishment with a more lenient form, provide evidence of his correction, characteristics from the correctional institution and other documents indicating the possibility of replacement.

Essence and objectives of the measure

Exemption from punishment due to illness or other reasons does not rehabilitate the offender. The essence of the measure is to eliminate or minimize (if possible) adverse consequences associated with the execution of the sentence.

Introduction objectives:

savings in criminal repressive measures,
stimulating the guilty citizen to reform,
education of the criminal's sense of justice,
preventing negative consequences (for example, significant social costs).

Along with this, release is assigned if it is not possible to achieve the goals of the punishment.

Deferment of serving a sentence

In some cases, convicted persons may qualify for a deferment of execution. This concept and types of exemption from criminal punishment are associated with the fact that the state temporarily grants a reprieve to the guilty person. Essentially, for the guilty person, this means that the sentence will be served after a certain time after the trial, and not immediately, as in the vast majority of cases.

Certain citizens with special circumstances can count on such installment plans.

a pregnant woman, as well as parents of both sexes, provided that they are the only official representatives of the child and agree to his upbringing and maintenance;
if the severity of the crime is mild or moderate, and the person applying for a deferment has no more than two convictions;
for crimes related to the distribution of drugs, a deferment may also be granted, implying that the punishment will be incurred later, however, to obtain it, the offender must have an officially registered drug addiction, and it is also necessary that the person agrees to treatment for drug addiction.

If a deferment from serving a sentence is requested by a person who is the only parent of a minor, then such person is subject to certain requirements that he must fulfill.

Unconditional grounds for refusing a deferment are considered. If the crime is classified as serious, and the period of imprisonment will be more than 5 years, then serving it takes place immediately after the trial.

A person will be denied this opportunity if the articles for which he may be held liable are terrorist.

If a deferment is applied in connection with the upbringing of a child or children, the convicted person must have a permanent place of residence with which he must provide for the child. A reprieve is not provided to those previously deprived of parental rights, as well as if the offender had previously committed unlawful acts against the children under their care and was sentenced for this to a real term of serving in a correctional colony.

It is worth noting that in international use, deferment of punishment is quite limited. In Russia they can provide it for several years. True, the issue of the birth of new children during the period while the deferment lasts is slightly unregulated, but in general this is the only country that offers such an opportunity to avoid responsibility for some time. Foreign practice has a slightly different type of application of such measures. In foreign countries, for example, in the USA, this method is provided to convicts extremely rarely and has clearly regulated terms: 1-3 months, depending on the article and the identity of the criminal. As a rule, in the States this opportunity is provided in cases of death sentences.

Commentary on Article 300 of the Criminal Code of the Russian Federation

1. For the first time, the Criminal Code of the Russian Federation specifically provided for a rule providing for punishment for illegal exemption from the Criminal Code.

2. The public danger of a crime is expressed in discrediting state power in the person of the prosecutor’s office, investigation, inquiry, humiliation of its authority, leading to a loss of faith in the fairness of justice.

The crime is classified as serious. Its gravity and seriousness is evidenced not only by the size of the prescribed punishment - from two to seven years of imprisonment, but also by the fact that there is no alternative to the sanction, which provides for only one type of punishment - imprisonment for a certain period.

3. The main object of a criminal attack is the order of justice established in the state, i.e. interests of justice. An additional object of encroachment is the interests of the public service.

4. The objective side of the crime is expressed in action - in the illegal release from the criminal code of a person suspected or accused of committing a crime.

4.1. The illegality of exemption from the Criminal Code means the issuance, contrary to the grounds established in criminal law (in the absence of the necessary conditions), of the exemption provided for in Art. 75 - 78, 84, 90, note. to Art. 122, 126, 127.1, 204, 205, 205.1, 206, 208, 210, 222, 223, 228, 275, 282.1, 282.2, 291, 307, 337, 338 of the Criminal Code, by the prosecutor, investigator or person conducting the inquiry, decisions on termination of criminal prosecution, criminal prosecution under Art. 24 - 28, 212 Code of Criminal Procedure. The procedure for issuing this resolution is provided for in Art. 213 Code of Criminal Procedure.

5. The legislator distinguishes between the grounds for exemption from criminal justice and circumstances excluding the criminality of the act, and therefore, non-rehabilitating and rehabilitating types of grounds for termination of criminal prosecution.

A literal interpretation of the disposition of the article leads to the conclusion that the circle of exempt persons is limited only to the first of these types of grounds. At the same time, both types as grounds for termination of criminal prosecution and criminal prosecution are combined by Art. 212 Code of Criminal Procedure. Moreover, exonerating grounds may reflect not only the non-involvement of the suspect or accused in the commission of an act provided for by criminal law, but also other circumstances specified in Art. 24, 27 Code of Criminal Procedure.

6. Only such termination of criminal prosecution or criminal prosecution can be recognized as illegal, by which a suspect or accused of committing a crime is released from criminal prosecution. The law does not provide the opportunity to apply a comment. article in the case of illegal release from criminal prosecution of a person who is not recognized as a suspect or accused, while in practice the termination of criminal prosecution or criminal prosecution is often carried out in relation to persons involved in criminal proceedings as witnesses. This practice cannot be considered positive.

6.1. Suspect - a person against whom criminal proceedings have been initiated or detained on suspicion of committing a crime or to whom a preventive measure has been applied before charges are filed. For more details see Art. 46 Code of Criminal Procedure.

6.2. The accused is a person in respect of whom, in accordance with Art. 171 of the Code of Criminal Procedure, a decision was made to bring as an accused either in accordance with Art. 225 of the Code of Criminal Procedure, an indictment was drawn up. For more details see Art. 47 Code of Criminal Procedure.

7. According to the legislative structure, the corpus delicti is formal. The crime is completed (by the elements) at the moment the decision is made to terminate the criminal prosecution, criminal prosecution, or rather, from the moment it is given legal force - the law enforcement officer signs a reasoned resolution to terminate the criminal prosecution, criminal prosecution - and announces this to the suspect (accused). Until this point, we can only talk about preliminary criminal behavior.

8. The subjective side of the crime is characterized by guilt in the form of direct intent. In other words, the guilty person realizes that he is illegally releasing the suspect or accused from the criminal code, and desires this. The motives for committing this socially dangerous act do not matter for its qualification as a crime. This may be the desire of the law enforcement officer to receive for his illegal action a material reward from the liberated person, his relatives or friends, or intangible benefits, such as: increasing his authority in the team, promotion, acquiring new acquaintances with useful people, etc. .

9. The special subject of the criminal offense is the prosecutor, investigator or person conducting the inquiry, as well as the head of the investigative department who opened the criminal investigation or accepted the case for his proceedings in accordance with Part 2 of Art. 39 Code of Criminal Procedure.

9.1. A prosecutor is an official of the General Prosecutor's Office of the Russian Federation, the prosecutor's office of a republic within the Russian Federation, regions, cities, districts, military and transport units, who, within the limits of his competence, oversees the implementation of laws by the bodies of inquiry and preliminary investigation (see paragraph 31 of Article 5, Article 37 of the Code of Criminal Procedure).

9.2. An investigator is an official of the prosecutor's office, internal affairs department, FSB, conducting a preliminary investigation according to the criminal investigation, making all decisions on the direction of the investigation and carrying out investigative actions and bearing full responsibility for their legal and timely conduct (see paragraph 41 of article 5, article 38 Code of Criminal Procedure).

9.3. The person conducting the inquiry is an official of the Department of Internal Affairs, a unit of the Armed Forces of the Russian Federation, an agency of the FSB, a unit of the Ministry of Justice of Russia, the State Fire Supervision Authority, the customs authority, etc., taking the necessary operational investigative and other measures provided for by the criminal procedural law in for the purpose of preventing and suppressing crimes, as well as detecting crimes and the persons who committed them (see paragraph 7 of article 5, article 40, article 41 of the Code of Criminal Procedure).

10. The liability of a judge who unjustifiably exempted a person from the administrative supervision is provided for in Art. 305.

11. The question of the possibility of bringing an unscrupulous law enforcement officer to justice under Art. 300 for illegal termination of criminal prosecution, criminal prosecution due to the lack of corpus delicti, due to the non-involvement of the suspected or accused person in the commission of the crime remains unresolved, since in these cases the legislator does not consider those involved in criminal prosecution to be exempt from criminal justice (see Section IV of the Criminal Code) .

Exemption from serving a sentence due to statute of limitations

Exemption from liability applies if the limitation period for the appointment of departure has already passed.

If the crime was established much later than the time it was committed, then the offender has the right to take advantage of the termination of the prosecution due to the passage of time.

For minor crimes ─ 2 years.
The average degree involves 6 years, after which it is not possible to apply punishment to the offender.
For serious crimes, this period is 10 years.
For especially serious cases ─ 15 years.

According to this possibility, the grounds for exemption from criminal punishment arise due to the fact that too much time has passed. In fact, the state saves its energy to organize isolation for a person if he committed this crime for the first time and subsequently led a respectable lifestyle, that is, he worked, studied, and raised children.

If such a crime was committed, and the offender was subsequently prosecuted in other cases, especially of a similar nature to the one previously committed, then termination of criminal prosecution cannot be applied. In this case, the offender receives a certain period of responsibility according to the degree of the crime.

Grounds for exemption from criminal liability

The Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) provides a number of grounds on which a person can be released from criminal liability.

So, in accordance with the provisions 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 disclosure and investigation of the crime, compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime, and, as a result of active repentance, ceased to be socially dangerous.

At the same time, according to Part 2 of Art. 75 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 (Article 126, Article 127.1, Article 204, Article 205, Article 205.1, Article 206 , Article 208, Article 210, Article 222, Article 223, Article 228, Article 228.3, Article 275, Article 276, Article 278, Article 282.1, Article 282.2, Article 291, Art. 291.1, Article 307 of the Criminal Code of the Russian Federation).

It is important to note that active repentance must be evidenced by active actions taken after the end of the crime. Such actions include: confession, cooperation with the investigation, compensation for causal damage, making amends for damage caused by the crime, etc. Contributing to the detection and investigation of a crime can be expressed in the voluntary surrender of instruments of crime, stolen property, indication of the location of accomplices and other actions that contribute to the solution of the crime. In addition, active repentance can be expressed in voluntary compensation for property damage and moral harm caused as a result of the crime, and the commission of other actions aimed at making amends for the harm caused to the victim.

The decision to release from criminal liability in connection with active repentance is a right, and not an obligation, of the bodies of inquiry, investigation and court and is made only if all the listed conditions are met, taking into account the nature of the actions, the identity of the perpetrator and other relevant circumstances. It is necessary to note that exemption from criminal liability in connection with active repentance refers to non-rehabilitative grounds, therefore this procedural decision is possible only with the consent of the subject.

The next basis for exemption from criminal liability is, in accordance with Art. 76 of the Criminal Code of the Russian Federation reconciliation with the victim. To be able to apply this norm, the following mandatory conditions must be present. The first condition is committing a crime for the first time. The second condition is the commission of a crime of a certain category, that is, of minor and medium gravity. These two conditions completely coincide with the conditions for release from criminal liability in connection with active repentance. The third mandatory condition for the application of this norm is the fact of reconciliation between the subject who committed the crime and the victim, which means that the victim withdraws all claims made during the proceedings. Waiver of claims and reconciliation are formalized in accordance with the procedure established by law. The fourth condition for release from criminal liability in connection with reconciliation is that the person who committed the crime makes amends for the harm caused to the victim.

Moreover, making this decision is a right, and not an obligation, of law enforcement agencies (unless we are talking about cases of private prosecution, in which the victim’s statement of reconciliation is an unconditional basis for exemption from criminal liability in connection with the reconciliation of the parties).

In accordance with the provisions of Art. 76.1 also provides for the possibility of exemption from criminal liability for persons who have committed crimes in the field of economic activity in connection with compensation for damage.

For persons who have committed a crime of minor or moderate gravity for the first time, in accordance with Art. 76.2 of the Criminal Code of the Russian Federation, it is possible for the court to release from criminal liability with the imposition of a court fine if it has compensated for the damage or otherwise made amends for the harm caused by the crime.

In addition, according to the provisions of Art. 78 of the Criminal Code of the Russian Federation, a person is exempt from criminal liability if, after committing a crime, the following has passed:

a) two years after committing a crime of minor gravity;

b) six years after committing a crime of average gravity;

c) ten years after the commission of a serious crime;

d) fifteen years after the commission of a particularly serious crime.

The article material is taken from open sources

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Nuances of releasing minors

The peculiarities of releasing minors from punishment lie in the possibility of prescribing educational measures (forcibly). If a person under 18 years of age is convicted of a medium or serious crime, then by court decision he may be transferred to a closed educational institution.

So, exemption from criminal punishment is applied only on the grounds and in the manner prescribed by law. Its violation entails the invalidity of the court decision on release.

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