1. Voluntary renunciation of a crime is the cessation by a person of preparation for a crime or the cessation of actions (inaction) directly aimed at committing a crime, if the person was aware of the possibility of bringing the crime to completion. 2. A person is not subject to criminal liability for a crime if he voluntarily and finally refused to complete this crime.
3. A person who voluntarily refuses to complete a crime is subject to criminal liability if the act actually committed by him contains a different corpus delicti.
4. The organizer of a crime and the instigator of a crime are not subject to criminal liability if these persons prevented the perpetrator from completing the crime by timely reporting to the authorities or other measures taken. An accomplice to a crime is not subject to criminal liability if he has taken all measures within his power to prevent the commission of the crime.
5. If the actions of the organizer or instigator, provided for in part four of this article, did not lead to the prevention of the commission of a crime by the perpetrator, then the measures taken by them may be recognized by the court as mitigating circumstances when imposing punishment.
Commentary to Art. 31 of the Criminal Code of the Russian Federation
1. In accordance with Part 1 of the commented article, voluntary renunciation of a crime is recognized as the cessation by a person of preparation for a crime or the cessation of actions (inaction) directly aimed at committing a crime, if the person was aware of the possibility of bringing it to completion. From this definition it follows that voluntary refusal is possible only at the stages of an unfinished crime, i.e. until the end of the crime. Voluntary refusal at the preparation stage is usually expressed in the form of passive behavior (inaction); in case of an unfinished attempt - both active and passive behavior; when the attempt is completed - only active behavior (actions).
2. Voluntary refusal, as follows from Part 2 of Art. 31, must be accompanied by two conditions (signs): voluntariness and finality. Voluntariness means that a person, realizing the possibility of completing a crime, shows his will, determination and, without any coercion, stops the encroachment that has begun. The motives for voluntary refusal can be different (fear of punishment, pity for the victim, shame in front of relatives, etc.) and do not matter. At the same time, there will be no sign of voluntariness if the person is forced to refuse to complete the crime due to any objective obstacles that make it difficult to complete the crime or make it impossible (for example, the appearance of the owners in the house, an ambush by police officers, etc.) .
Finality presupposes the complete, irrevocable cessation by a person of a criminal offense begun, without the intention of continuing it in the future. Thus, if a person stopped the actions he had begun (attempted murder), because the criminal result did not occur due to circumstances beyond his control, with the intention of re-committing this crime in a more favorable environment, there will be no sign of voluntariness.
3. If all the above conditions are present, voluntary refusal completely excludes criminal liability for the crime for which the person was preparing or attempting to commit it. In this capacity, voluntary refusal can be attributed to special (special) grounds that exclude criminal liability for preliminary criminal activity, and to criminal legal measures aimed at preventing and suppressing crimes.
A person who voluntarily refuses to complete a crime is subject to criminal liability if the act actually committed by him contains a different corpus delicti. Thus, if a person voluntarily refuses rape, the perpetrator may be prosecuted for kidnapping or unlawful imprisonment (Article 126 or 127 of the Criminal Code).
4. Voluntary refusal should be distinguished from active repentance, which plays (depending on the situation) the role of either a basis releasing a person from criminal liability (Article 75 of the Criminal Code) or a circumstance mitigating punishment (paragraphs “i”, “k” Part 1 of Article 61 of the Criminal Code). First of all, they must be distinguished by quantitative (temporal) criterion; voluntary refusal occurs only at the stages of an unfinished crime, active repentance - after its completion. On a qualitative (substantive) basis, active repentance is characterized by the active behavior of the person who committed the completed crime, which consists in reducing or making amends for the harm caused, turning himself in, sincere confession, actively contributing to the detection of the crime, the search for stolen property, etc.
Active repentance in the cases provided for in the articles of the Special Part of the Criminal Code acts as a special basis for exemption from criminal liability (notes to Articles 122, 126, 127.1, 204, 205, 205.1, 206, 208, 210 of the Criminal Code, etc.). This creates an important criminal-preventive potential of the above-mentioned norms and institutions.
5. The features of the voluntary refusal of accomplices are defined in parts 4 and 5 of the commented article. Depending on the role (type) of the accomplices, this issue is resolved differently. The main condition for their release from criminal liability in these cases is that the voluntary refusal of the accomplices must be active and aimed at stopping the joint criminal activity that has begun. In particular, the organizer and instigator are not subject to criminal liability if they, firstly, promptly reported the crime to the authorities or took other measures, as a result of which, secondly, they prevented its completion by the perpetrator. If they failed to prevent the crime, then the measures taken may be recognized by the court as mitigating circumstances when assigning punishment.
An accomplice to a crime is not subject to criminal liability if he has taken all measures within his power to prevent the commission of the crime, both in the case where the crime was prevented and in the case when, despite the efforts of the accomplice, the perpetrator nevertheless committed the crime.
A person who has promised in advance to hide a criminal, the means or instruments of committing a crime, or objects obtained by criminal means, or to acquire or sell such objects (physical complicity), is not subject to exemption from criminal liability if he refuses to fulfill his promise after the crime has been committed by the perpetrator. In this case, we can only talk about active repentance.
Objective and subjective signs of voluntary refusal to commit a crime
The main objective sign is the voluntary cessation of any actions that could otherwise lead to the creation of a socially dangerous situation.
If we talk about subjective signs, there are only a few of them:
- voluntary decision. A person is obliged to accept it independently and of his own free will, and not under someone else’s influence or the influence of irresistible forces. At the same time, the reasons why the person made such a decision do not play any role;
- understanding the possibility of completing a criminal act. Here we are talking about the subjective perception of a potential criminal;
- irrevocability. A person must make a final decision without returning to the thought of completing the crime/
These conditions must be met without fail.
Voluntary refusal is allowed at the stage of an unfinished attempt, when the person has not yet managed to cause any damage or harm to another person. As for the completed assassination attempt, when all previously planned actions have already been carried out, but have not yet led to the expected consequences for unknown reasons, here the refusal can be viewed in two ways. Such situations turn out to be controversial and the punishment is determined individually in each case.
Condition for recognizing refusal to commit a crime as voluntary
Experts name the only condition that must be met in order to recognize the refusal of the attempt as voluntary. A person acting as a criminal, having not completed the criminal act, having realized his guilt, must independently take all possible measures and prevent the onset of consequences. In this situation, the punishment will be as reduced as possible. There are cases in which complete acquittal can be achieved. It all depends on the specific circumstances.
Voluntary refusal to carry out a criminal act presupposes the absence of the need to bring a specific person to justice. But, if a person, while preparing for a crime, has already committed any violation, for example, acquired a weapon illegally, he will be held accountable to the law under the relevant article [23, p. 98].
Article 75 of the Criminal Code of the Russian Federation establishes the rule of exemption from criminal liability in connection with active repentance. However, the criminal law allows the latter as a circumstance exonerating from criminal liability only if certain conditions are met: the offender must come to the department himself and surrender, assist the investigative body in solving the crime, and also compensate for the damage caused or otherwise make amends. in front of the victim. As a result, it can be argued that the person repented and lost the status of a socially dangerous subject, thereby ceasing to be a threat to society.
Article 28 of the Code of Criminal Procedure of the Russian Federation states that criminal prosecution can be terminated if the person under suspicion or accused of committing an unlawful act repents. According to Part 1 of this article, the investigator, having studied the case and having received permission from the head of the investigative body, as well as the investigator, having received the permission of the prosecutor, can terminate the criminal investigation against a person who is under suspicion or accused of committing acts that are taken into account in Part 1 of Article 75 of the Criminal Code RF.
The question of signs of repentance of the criminal is debatable. It is necessary to note that the article uses the word “may” for a reason, that is, in this case the right remains with the body of the investigative committee (or the body of inquiry). This means that if the criminal has repented, and there are subjective conditions for release outlined in Article 75 of the Criminal Code of the Russian Federation, the body investigating the case, which may be a court, investigator or interrogator, has the right to refuse to release the criminal.
However, for the possibility of applying active repentance, it is necessary that in the actions of the criminal who committed the act, all conditions or, in exceptional cases, some parts of these conditions are present simultaneously, when for objective reasons we can see that the presence of a certain condition could not exist due to the circumstances of the case.
Legal expert A.V. Polikhovskaya says that in Article 75 of the Criminal Code of the Russian Federation there is a list of problems and this issue is one of the main ones - “inconsistency between the name of the norm and the content.”
Remorse and levels of remorse
If we consider the term “ repentance ” from the point of view of moral psychology, then we can come to the understanding that repentance means the call of conscience, the painful feeling that what is happening is not normal, conscience does not allow us to go further. When repenting, a person intends to follow the voice of conscience in the future.
There are the following levels of remorse :
- the criminal is ready to compensate for all material or moral damage incurred, he realizes that he was wrong and agrees with all the claims;
- the criminal also regrets his actions. He, having independently heard the voice of conscience, has a desire to correct his mistake;
- the criminal regrets his action and has figured out what prompted him to commit this act. He rethought and had a more complete understanding. In this regard, there are guarantees that this act will not be repeated in the future.
It feels like repentance can lead to a person beginning to change himself for the better. There is a possibility that this thinking will lead the criminal to become wiser and begin to feel responsible for his actions.
When investigating criminal cases, there is a tendency to take a formal approach to the concept of active repentance. Very often, criminals are exposed to the fact that they themselves expose themselves to committing an act by giving confessions. Often in court practice there are even more complicated cases when courts refer to the confession of persons who were unable to complete their criminal intent due to the fact that they were caught red-handed by law enforcement agencies. Nevertheless, the criminals subsequently agreed to make confessions, which were discussed in court sentences.
Voluntary refusal to commit a crime: judicial practice
Let's consider an example from judicial practice , namely the Appeal Resolution of the Vologda Regional Court No. 22-2219/2017 of November 16, 2022 in case No. 22-2219/2017.
Sharapov S.A. found guilty of committing thefts, including illegal entry into premises, and unlawful taking of a car without the purpose of theft under circumstances established by the court.
In the appeal, the convicted Sharapov S.A. indicates that he does not agree with the sentence, considers it too harsh. Refers to the fact that, based on judicial practice by the courts of the Vologda region, according to Article 158, part 2, paragraph “b” of the Criminal Code of the Russian Federation, if the damage is compensated in full or in part or returned to the victim, then the punishment is imposed less than two years of imprisonment. I do not agree with the qualification of his actions under Article 158 Part 1 of the Criminal Code of the Russian Federation regarding the theft of a cell phone “...”, which was in the passenger compartment of a car of the brand “...”, because returned the phone to the owner when he arrived at the scene of the crime, thereby voluntarily stopping actions aimed at committing this crime, asks to apply Part 1 of Article 31 of the Criminal Code of the Russian Federation. For the second episode, qualified under Article 158 Part 1 of the Criminal Code of the Russian Federation, he asks to apply Part 2 of Article 31 of the Criminal Code of the Russian Federation, since the damage has been fully returned. It is noteworthy that the victims did not insist on strict punishment.
The court found that the legal qualification of the actions of Sharapov S.A. matches the description of the criminal acts to which he agreed to the charges. Grounds for the release of Sharapova S.A. no criminal liability is considered. Punishment for Sharapov S.A. appointed in accordance with the requirements of the law, taking into account the deed and all circumstances affecting liability. It corresponds to the social danger of the crimes he has committed and the personality of the perpetrator, the principles of humanism and justice enshrined in the criminal legislation of the Russian Federation, and meets the objectives of correcting the convicted person and preventing him from committing new crimes. The court took into account as circumstances mitigating the punishment: full admission of guilt, repentance for the crime, surrender, state of health of S.A. Sharapova. The appellate court does not see any grounds for recognizing other circumstances as mitigating the sentence of the convicted person. The aggravating circumstance is Sharapova S.A. recidivism was recognized. There is no data to consider what was assigned to S.A. Sharapova. punishment, both for each crime individually and for their totality, is not unjust due to its severity. The court does not find any grounds for mitigating the sentence imposed on the convicted person, as raised in the appeal. The arguments of the appeal of the convicted person are that, based on the judicial practice of the courts of the Vologda Region under Article 158, Part 2, Clause “b” of the Criminal Code of the Russian Federation, if the damage is compensated in full or in part or returned to the victim, then the punishment is imposed less than 2 years of imprisonment, not may serve as a basis for canceling or changing the court decision of the court of first instance, since such judicial acts are not prejudicial in nature and are not the basis for adoption in the case of Sharapov S.A. a different decision than the one made by the court of first instance. In addition, in the Russian Federation, judicial precedent is not a source of law.
Thus, in fact, the appellate court confirmed the correctness of the classification of the crime and the court decision of the first instance court and, in our opinion, rightly refused to apply under the first episode of Part 1 of Article 31 of the Criminal Code of the Russian Federation and for the second episode, qualified under Article 158, Part 1 of the Criminal Code RF application of Part 2 of Article 31 of the Criminal Code of the Russian Federation.
Another similar example could be the Sentence of the Dzerzhinsky District Court of the Novosibirsk Region No. 1-392/2017 of November 15, 2022 in case No. 1-392/2017.
Kokoteev Yu.I. committed an intentional crime in the city of Novosibirsk under the following circumstances. DD.MM.YYYY at about 5 p.m. Kokoteev was in a state of intoxication at house No...., when he saw FULL NAME1 in the hand of an unfamiliar person. cellular telephone "…". At this moment, Kokoteev had a criminal, selfish intent aimed at committing the open theft of a cell phone from FULL NAME1. Being in the same place and at the same time, Kokoteev, realizing his criminal, selfish intent, approached FULL NAME1. and, acting openly, snatched from her hand a cell phone “...” worth 3,000 rubles, in which a SIM card of the cellular operator “...” was installed, on the account of which there were funds in the amount of 50 rubles, thereby openly kidnapping him.
After which, Kokoteev, keeping the stolen property to himself, without responding to the legal demands of FULL NAME1. stop and return the stolen property to her, fled the scene of the crime, causing harm FULL NAME1. material damage in the amount of 3050 rubles. At the court hearing, defendant Kokoteev Yew.I. He admitted partial guilt. He explained to the court that he worked in a taxi. DD.MM.YYYY he brought the client to Sberbank located in house No.…. While he was helping a client, his passport, driver's license and phone were stolen from his car. He came to this place and tried to find the thief. DD.MM.YYYY in the evening, once again he came to this place and went into the cafe. There he began drinking alcohol with unfamiliar men. Then they went outside and began drinking alcohol there. After some time, the victim, FULL NAME1, approached them and stood to the side. As he understood, the victim’s husband drank alcohol with him. He saw FULL NAME1 in his hands a cell phone “...” in a red case. He thought that this phone had previously belonged to him and had been stolen. He decided to get this phone back. He snatched the phone from FULL NAME1’s hand and ran towards the street. ...he doesn’t know why he did this, as he was heavily intoxicated. Running into the courtyard of a house, he stopped and went to his home. Arriving home, he went to bed. Then he realized that he had taken someone else's phone. So he went to the police to return this phone, but was detained.
During the preliminary investigation, Kokoteev gave slightly different testimony. So, in particular, Kokoteev stated that after they sat in the tavern, they went out into the street and began to drink alcohol. He saw FULL NAME1 in his hands a cell phone, she turned on the music on it and listened to it, at that moment he decided to steal this phone from FULL NAME1, snatched it from his hand and ran towards the street. …. He doesn’t know why he did this, since he was heavily intoxicated. Running into the courtyard of a house he couldn’t say which one, he stopped and went to his home. Arriving home, he went to bed.
Having analyzed the defendant’s explanations given by him during the preliminary investigation and at the trial, the court comes to the conclusion that during the preliminary investigation Kokoteev gave truthful testimony, and the court recognizes the testimony of Yu.I. Kokotev as truthful. given by him in court, in terms of indicating the place, time of the incident, the fact that it was he who snatched the mobile phone from the hands of FULL NAME1, with which he ran away. In the remaining part, the testimony of the defendant, given by him at the court hearing, is recognized by the court as untrue and regarded as a way of defending himself against the charges brought against him.
In Kokoteev’s actions, the court does not see a voluntary renunciation of the crime (Article 31 of the Criminal Code of the Russian Federation), since Kokoteev did not stop actions directly aimed at committing a crime, but illegally took possession of someone else’s property, fled from the scene of the crime with the stolen property, and had a real opportunity to dispose of the stolen property .
As can be seen from the analysis of the situations presented above, the court in both cases considered the crime completed, and therefore refused to apply s. 31 of the Criminal Code of the Russian Federation.
Voluntary renunciation and active repentance
Voluntary refusal to commit a crime should be distinguished from active repentance, which is a voluntary atonement for socially dangerous consequences that have already been caused. The main difference between these institutions of criminal law is the scope of their actions:
- the scope of voluntary renunciation is criminal activity that has begun but is not completed;
- The scope of active repentance is the directly active behavior of a person who has already committed criminal acts, but has not yet been convicted for it. In particular, active repentance can be said to mean that the crime was not completed due to reasons beyond the will of the perpetrator.
For example, after a failed attempt to carry out a murder - the explosive device did not go off, one of the participants in the crime comes to the law enforcement agencies with a confession, while he exposes the other accomplices.
Active repentance can have the same consequences as voluntary renunciation of a crime - the perpetrator may be released from criminal liability or his actions will be recognized as mitigating circumstances when sentencing.
