Exemption from criminal punishment - the concept of a measure, the essence of application and types

Exemption from punishment is a separate institution of Russian criminal law, through which the principle of humanism is guaranteed. The purpose of its introduction is to free the offender from serving an already imposed sentence.

We propose to consider the concept and types of exemption from punishment, its inherent features and the possibility of implementation in practice.

Concept and comparison

Exemption from criminal punishment is carried out in court (exceptions to the general rule are acts of amnesty and pardon). It is expressed in the fact that the offender is released from serving his sentence (in whole/partially), despite the fact that it is provided for by the sentence. We will tell you more about amnesty and pardon in criminal law in this article.

Attention! The use of this institution in practice does not mean exemption from criminal liability - the court verdict is made based on the results of the consideration of the case. Read more about exemption from criminal liability here https://lexconsult.online/8615-varianty-osvobozhdeniya-ot-ugolovnoi-otvetstvennosti

The main differences between the concepts under consideration:

Legal nature of the concept

The concept and types of exemption from criminal punishment are described in detail in the Criminal Code. The concept of “exemption from punishment” does not rehabilitate the person who committed the crime. This is a kind of reaction of the state to a violation of a certain article of the law, but, unlike exemption from liability, exemption from actually serving a sentence is applied only to the convicted person, only by the court and only after the conviction has entered into force.

The rationale for release is to minimize, where possible, the adverse effects of incarceration. Exemption from the actual application of responsibility stimulates convicts to reform, promotes their resocialization, and prevents them from developing a further antisocial attitude.

The grounds for exemption from criminal punishment are a mandatory step on the path to expunging a criminal record. All grounds can be divided into: factual and legal. Legal ones, as a rule, consist in the presence of specific life circumstances, and factual ones consist in the absence, in the opinion of the court, of the need to hold a person accountable.

If there is one of the grounds for release from liability, the defendant or his defense attorney must file the appropriate petition addressed to the judge or the head of the correctional institution, if the sentence is already being served. The judge and the authorities of the correctional institution study the petition and materials of the defendant’s case. If it is clear that he has reformed or is developing a serious illness due to which he cannot complete the punishment in the established regime, the petition is approved and a corresponding resolution is issued. Based on this decision, a person is released from serving a sentence.

Many uninformed people confuse responsibility and punishment. As for responsibility for a criminal act, it always exists, and will certainly be assigned in one of its forms. But punishment can only be imposed if there is a court ruling on the person’s guilt. Mentally ill and minors can be exempted from liability because, due to their developmental characteristics, they do not realize the gravity of their actions. Punishment is prescribed to sane, healthy people who are aware of the wrongfulness of their behavior, and in the process of inflicting punishment, must regret their actions.

The concept and grounds for exemption from punishment and criminal liability

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.

Forms of release and their features

The Criminal Code of the Russian Federation provides for 6 types of exemption from punishment. They differ in the form of application, the basis for implementation and have distinctive features.

Types (also used for release from prison for health reasons):

1. Conditional early release from serving a sentence (Article 79 of the Criminal Code of the Russian Federation). Appointed in relation to convicted persons, for whose correction it is not necessary to fully serve the sentence imposed. The peculiarity is that state control is exercised over released citizens.
2. Replacement of the remaining part of the punishment with a mitigated measure (Article 80 of the Criminal Code of the Russian Federation). When making a decision, the behavior of the convicted person is taken into account. Feature – the measure is unconditional, i.e. it cannot be canceled later by the court (for example, in case of unlawful behavior).
3. Release due to a change in the situation (Article 80.1 of the Criminal Code of the Russian Federation). The basis is the loss of social danger of the committed act (in objective conditions). The peculiarity of the measure is that it occurs regardless of the will of the criminal and applies to the whole circle of convicts.
4. Release due to illness (Article 81 of the Criminal Code of the Russian Federation). Reasons: mental disorder or other serious illness established by the results of a medical or psychiatric examination. The bottom line is that the convicted person poses no danger.
5. Deferment of serving sentences for pregnant women and in the presence of young children (Article 82 of the Criminal Code of the Russian Federation). It is appointed if the convicted person complies with a number of requirements - she does not abandon the baby, conscientiously fulfills the duties of raising him and does not pose a danger to society, i.e. does not commit a new criminal act.
6. Expiration of the statute of limitations for the sentence (Article 83 of the Criminal Code of the Russian Federation). In case of illness of the convicted person, natural disasters and other situations, the sentence has legal force, but is not actually applied. Upon expiration of the limitation period, the convicted person is released from punishment.

Exemption from criminal liability: legal grounds

An individual who has committed a criminal act does not always receive punishment: in some circumstances, there is an exemption from criminal liability. At its core, this is the admissibility of issuing an act against an individual who has committed a crime, releasing such a citizen from the obligation to be condemned on behalf of the state and to undergo coercive measures in the form of a sanction.

The grounds for exemption from criminal liability are as follows:

Part 2 of this article states that individuals who have committed acts of other categories, that is, serious and especially serious crimes, can be released from criminal liability, but only if this is stated in the relevant article of the Special Part of the Criminal Code of the Russian Federation. So, for example, taking a hostage is a serious act, but the note to Article 206 of the Criminal Code of the Russian Federation states that the subject of the crime is released from liability if he frees the hostage; similar, so-called “special” grounds for exemption from criminal liability are enshrined in the notes and some other articles of the Criminal Code of the Russian Federation: 126, 204-206, 228, etc.

1. Due to active repentance (Article 75 of the Criminal Code of the Russian Federation). The conditions for this are as follows: the act is not a serious (minor or moderate) crime and for the first time the subject has confessed, voluntarily reported what was committed, helped to reveal and investigate it, provided information useful for the investigation, and compensated for the damage caused. However, this may not be enough: it is necessary that the subject ceases to pose a danger to society, and to clarify this circumstance, the court carefully studies the characteristics of the person, his behavior, attitude towards the crime, etc. A first-time offender is a person who has no criminal record; If a citizen was previously brought to criminal liability, but the criminal record was withdrawn or expunged, then this person, from the point of view of criminal law, is a person who committed a crime for the first time. In practice, this provision is often violated by investigative authorities, but the courts correct such errors and apply the current legislation correctly in this regard.
2. In connection with reconciliation with the victim (Article 76 of the Criminal Code of the Russian Federation). To use this basis, it is necessary that the act committed for the first time be classified as minor or moderate, the guilty party has reconciled with the victim and made amends for the harm caused by the crime. In connection with compensation for damage under certain articles listed in the law that provide for criminal liability for committing economic crimes (Article 76.1 of the Criminal Code of the Russian Federation). Such acts include tax evasion, market manipulation, illegal actions in bankruptcy, etc. In some cases, it is enough to simply compensate for losses, and in others, it is also necessary to transfer multiple monetary compensation to the federal budget. The category of the crime in this case does not matter, but the crime must be completely for the first time. It should be borne in mind that those who committed a crime for the first time from the standpoint of Art. 76.1 of the Criminal Code of the Russian Federation is a person who has no criminal record precisely under that article of the Criminal Code of the Russian Federation from liability under which this person is exempt, that is, a person who has an outstanding conviction for murder, from the point of view of Art. 76.1 of the Criminal Code of the Russian Federation is the first person who has committed tax evasion from legal entities and can be exempted from criminal liability under Art. 199 of the Criminal Code of the Russian Federation.
3. In connection with the imposition of a court fine (Article 76.2 of the Criminal Code of the Russian Federation). A person who has committed a non-serious (minor or moderate) unlawful act for the first time and has compensated for the damage or otherwise made amends for the damage can count on release. This basis appeared relatively recently - in 2016. Unlike exemption from criminal liability in connection with reconciliation with the victim, the consent of the victim is not required for exemption from criminal liability in connection with the imposition of a court fine; the court is obliged to listen and take into account the position of the victim, however, the disagreement of the victim with the release of the victim from criminal liability in connection with the imposition of a court fine is not mandatory for the court. It should also be noted that a judicial fine can be applied to formal and unfinished crimes when there is no damage; There are corresponding court decisions in specific criminal cases, when the courts exempt from criminal liability with the imposition of a court fine in the absence of a reason specified in the law in the form of the need to compensate for damage or otherwise make amends for the harm caused; moreover, such decisions are made under the articles of Chapter 31 of the Criminal Code of the Russian Federation “Crimes” against justice”, where the object of criminal actions is relations in the field of administration of justice. The absence of real, expressed in material form or monetary equivalent, harm caused by criminal actions, and, as a consequence of this, the absence of the opportunity to compensate for the damage and make amends for the harm caused does not deprive a person of the right to be exempt from criminal liability in connection with the imposition of a court fine.
4. Due to the expiration of the statute of limitations for criminal prosecution (Article 78 of the Criminal Code of the Russian Federation). The specific statute of limitations for bringing to justice depends on the severity of the act, namely on the category of the crime with which the person is charged: thus, for acts of minor gravity the statute of limitations is set at 2 years, for moderate offenses - 6 years, for serious crimes - 10 years, for especially serious crimes - 15 years. However, this basis does not apply to all crimes: for example, for terrorist attacks, attempts on the life of a statesman, or the organization of a terrorist community, there is no statute of limitations, and for crimes punishable by death or life imprisonment, the possibility of applying the statute of limitations in each case is decided by the court.
5. In connection with the publication of an amnesty act (Article 84 of the Criminal Code of the Russian Federation). The amnesty is announced by the State Duma of the Russian Federation, affects an indefinite circle of citizens and, as a rule, is timed to coincide with some important state date (the anniversary of the Victory in the Second World War, the anniversary of the adoption of the Constitution), etc. The circle of persons eligible for amnesty is determined separately in the Amnesty Resolution each time; As a rule, the amnesty covers persons who have committed crimes of minor and medium gravity, persons who have committed crimes in the field of economic activity, minors, persons who have committed serious crimes and were sentenced to imprisonment for a term of no more than 5 years, participants in hostilities, men and women older of a certain age and other categories of citizens.
6. In connection with the use of compulsory educational measures against a minor (Article 90 of the Criminal Code of the Russian Federation). Release on this basis is possible if the child committed an act of minor or moderate gravity, and the court considered that instead of punishment it would be more appropriate to use educational measures, including, for example, organizing special leisure time, establishing certain rules of behavior, etc.
7. In connection with the use of compulsory measures of a medical nature (Article 97 of the Criminal Code of the Russian Federation), this basis in legal science is not usually considered among the grounds for exemption from criminal liability, however, the court has the right to exempt the following persons from criminal liability and punishment: those who committed a crime in a state of insanity; persons who, after committing a crime, have developed a mental disorder that makes it impossible to impose or carry out punishment. Compulsory medical measures are also applied to persons who have committed a crime and suffer from a mental disorder that does not exclude sanity; an adult who has committed a crime against sexual integrity against a minor under 14 years of age, suffering from a disorder of sexual preference (pedophilia), which does not exclude sanity. These categories of citizens are not exempt from criminal liability. The condition for the use of compulsory medical measures is the presence of a mental disorder associated with the possibility of causing other significant harm or danger to oneself or others.

Exemption from criminal liability on the above grounds does not mean that there are no signs of a crime in the actions of the subject. Consequently, these persons do not have the right to rehabilitation, and the grounds we have considered are non-rehabilitating grounds for the termination of criminal cases and release from criminal liability. .

Is it easy to obtain exemption from criminal liability?

As we can see, there are quite a lot of grounds for exemption from criminal liability under the Criminal Code of the Russian Federation, but is it really easy to take advantage of this opportunity?

1. The only unconditional grounds for exemption from liability are compensation for damages for economic crimes, as well as the expiration of the statute of limitations. Even if an act of amnesty has been issued, the administration of the correctional institution may consider that it has nothing to do with the convicted person.
2. In order to be released from liability, a person must compensate for the damage and make amends. In some cases, the amount of damage reaches quite large values, and the subject is simply not able to collect a sufficient amount. In addition, in practice, many questions may arise, for example, how to determine the amount of damage, whether lost profits are included here, etc. An economic crimes lawyer will help to correctly resolve these issues so that his client compensates for damages in the required amount.
3. The use of many grounds for exemption from criminal liability (for example, in connection with the payment of compensation, the absence of claims from the victim) depends on the subjective opinion of the judge. For example, the court will evaluate whether the citizen really realized his guilt, whether he acted voluntarily or was under pressure, whether he needs forced correction, etc.

“On April 19, 2022, the Ministry of Internal Affairs of the Russian Federation submitted for public discussion a bill tightening the algorithm for exemption from criminal liability. Thus, the draft states that an individual who was previously released from liability due to active repentance, payment of compensation, reconciliation with the victim or payment of a fine has no right to claim exemption from liability again. According to the drafters, these persons are considered malicious violators, and not subjects deserving leniency. However, the amendments have many disadvantages: they can lead to an increase in the number of convictions, disincentivize the accused to reconcile with victims and make amends, etc.”

It follows that getting free from liability is not as easy as it seems: in most cases, the final word remains with the judge. This means that it is extremely important for a person to enlist the support of a criminal lawyer who will collect the necessary evidence of the existence of the appropriate ground(s) for release, and also convince the court that his client does not need forced correction. This is quite a labor-intensive and responsible job that only a competent specialist can handle.

Exemption from criminal liability should be distinguished from exemption from punishment: these legal institutions are correlated as general and particular, exemption from criminal liability is always associated with exemption from punishment, but not vice versa: exemption from punishment does not mean automatic exemption from criminal liability. In this article we do not consider the grounds for exemption from punishment listed in Chapter 12 of the Criminal Code of the Russian Federation.

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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