New edition of Art. 28 Code of Criminal Procedure of the Russian Federation
1. The court, as well as an investigator with the consent of the head of the investigative body or an inquiry officer with the consent of the prosecutor, have the right to terminate criminal prosecution against a person suspected or accused of committing a crime of minor or medium gravity, in cases provided for in part one of Article 75 of the Criminal Code of the Russian Federation.
2. Termination of criminal prosecution of a person in a criminal case for a crime of a different category when the person actively repents of the crime committed is carried out by the court, as well as by the investigator with the consent of the head of the investigative body or by the investigator with the consent of the prosecutor only in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation .
3. Before the termination of criminal prosecution, the person must be explained the grounds for its termination in accordance with parts one and two of this article and the right to object to the termination of criminal prosecution.
4. Termination of criminal prosecution on the grounds specified in part one of this article is not allowed if the person against whom the criminal prosecution is terminated objects to this. In this case, criminal proceedings continue as usual.
Another comment on Art. 28 Criminal Procedure Code of the Russian Federation
1. According to Part 1 of Art. 75 of the Criminal Code, to which Part 1 of the commented article refers, the meaning of active repentance is that a person who has committed a crime of minor gravity for the first time, after committing the crime, 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 a crime.
2. According to part 2 of the commented article (in the Criminal Code of the Russian Federation it corresponds to part 2 of article 75), criminal prosecution can be terminated, and the perpetrator of kidnapping can be released from criminal liability if he voluntarily released the abducted person (note to article 126 of the Criminal Code ); in the purchase and sale of a person who voluntarily released the victim, under the conditions specified in the note to Art. 127.1 CC; and in a whole range of grave and especially grave crimes under the conditions specified in the notes to Art. Art. 204, 205, 205.1, 208, 210, 222, 223, 275, 282.1, 307, 337 CC.
3. Part 1 of the commented article states that the court, as well as the investigator or inquiry officer, has the right, but not the obligation, in all cases without exception to terminate criminal prosecution on the basis of this article. Taking into account the specific circumstances of the case and the personality characteristics of the accused, the investigator has the right to complete the investigation by drawing up an indictment and if there are all the formal grounds provided for in this article for termination of criminal prosecution.
4. Having identified the grounds for termination of criminal prosecution in connection with active repentance, the court, prosecutor, investigator or investigator in charge of the criminal case must inform the suspect or accused of their intention and explain the essence of the planned procedural decision, as well as the right to object to it . If there is such an objection, the criminal prosecution cannot be terminated; the proceedings must be continued at the will of the suspect or accused in the usual manner until trial, where the defendant receives the most favorable conditions for defense against the charges and rehabilitation.
5. The decision of the investigator to terminate the criminal prosecution on the basis of the commented article acquires legal significance only if there is a mark on this document indicating the consent of the prosecutor signed by him, and a decision of the investigator - only if there is such a mark signed by the head of the investigative body.
Article 28.1. Termination of criminal prosecution due to compensation for damages
Article 28.1. Termination of criminal prosecution due to compensation for damages
[Code of Criminal Procedure] [Part One] [Section I] [Chapter 4]
. The court, as well as the investigator, with the consent of the head of the investigative body, terminates criminal prosecution against a person suspected or accused of committing a crime under Articles 198-199.1, 199.3, 199.4 of the Criminal Code of the Russian Federation, if there are grounds provided for in Articles , of this Code or part one Article 76.1 of the Criminal Code of the Russian Federation, if, before the appointment of a court hearing, the damage caused to the budget system of the Russian Federation as a result of the crime is compensated in full.
. For the purposes of this article, compensation for damage caused to the budget system of the Russian Federation is understood as payment in full of arrears, penalties and fines in the amount determined in accordance with the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against accidents at work and occupational diseases, taking into account the calculation of the amount of penalties and fines presented by the tax authority or the territorial body of the insurer.
. The court, as well as the investigator with the consent of the head of the investigative body or the investigator with the consent of the prosecutor, terminates criminal prosecution against a person suspected or accused of committing a crime provided for in Articles 146 part one, 147 part one, 159 parts five - seven, 159.1 part one, 159.2 part one, 159.3 part one, 159.5 part one, 159.6 part one, 160 part one, 165 part one, 170.2, 171 part one, 171.1 part one and one.1, 172 part one, 176, 177, 178 part one, 180 parts one - three, 185 parts one and two, 185.1, 185.2 part one, 185.3 part one, 185.4 part one, 185.6 part one, 191 parts two and four, 192, 193 parts one and one. 1, 194 parts one and two , 195 - 197 and 199.2 of the Criminal Code of the Russian Federation, if there are grounds provided for in articles of this Code, and in cases provided for in part two of Article 76.1 of the Criminal Code of the Russian Federation.
3.1. The court, as well as the investigator, with the consent of the head of the investigative body, terminates criminal prosecution against a person suspected or accused of committing a crime provided for in Article 193, parts one and two of Article 194, articles 198 - 199.2 of the Criminal Code of the Russian Federation, if there are grounds provided for in part third article 76.1 of the Criminal Code of the Russian Federation.
3.2. If the head of the investigative body disagrees with the termination of criminal prosecution in accordance with part three.1 of this article, he issues a reasoned decision to refuse to terminate the criminal prosecution and the person against whom the criminal case was initiated, the Prosecutor General of the Russian Federation and the Commissioner are immediately notified of the decision. under the President of the Russian Federation for the protection of the rights of entrepreneurs.
. Before the termination of criminal prosecution, the person must be explained the grounds for its termination in accordance with parts one, three and three.1 of this article and the right to object to the termination of criminal prosecution.
. Termination of criminal prosecution on the grounds specified in parts one, three and three.1 of this article is not allowed if the person against whom the criminal prosecution is terminated objects to this. In this case, criminal proceedings continue as usual.
Everything about criminal cases
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I). Termination of cases under articles
198 - 199.4 of the Criminal Code
- part 1 28.1 of the Code of Criminal Procedure
condition for termination of full refund
— Part 2 28.1 Code of Criminal Procedure
What is meant by compensation for damages?
II). Termination of cases under articles
146
-
199.2 of the Criminal Code
)
— Part 3 28.1 Code of Criminal Procedure
termination under articles
170.2 - 199.2 of the Criminal Code
- part 3.1 28.1 of the Code of Criminal Procedure
termination under articles
of Part 3 76.1 of the Criminal Code
Procedure for termination of cases
— Part 3.2 28.1 Code of Criminal Procedure
disagreement of the head of the investigation team to terminate the case
- Part 4 28.1 Code of Criminal Procedure
are required to explain the grounds for termination
— Part 5 28.1 Code of Criminal Procedure
mandatory consent of the accused to terminate
Plenum of the Supreme Court
Plenum
on the application of norms on the termination of criminal cases dated June 27, 2013. N 19
Selection of materials
Exemption for economic reasons
trains from liability (
76.1 CC
)
Article 28.1 of the Code of Criminal Procedure. Termination of prosecution in cases of crimes in the sphere of economic activity
1) The court, as well as the investigator, with the consent of the head of the investigative body, terminates criminal prosecution
against a person suspected or accused of committing a crime under articles:
198, 199, 199.1, 199.3, 199.4 of the Criminal Code;
- if there are grounds provided for in Articles
24 of the Criminal Procedure Code and 27 of the Criminal Procedure Code , or Part 1 76.1 of the Criminal Code,
Url Additional information:
- Part 1 76.1 of the Criminal Code
condition for termination, full compensation for damages
— Part 1 28.1 Code of Criminal Procedure
condition for termination of full refund
- P.
Plenum No. 48 compensation under articles from
part 1 76.1 of the Criminal Code
- clause 14
Plenum No. 19 compensation under articles from
Part 1 76.1 of the Criminal Code
Features of termination of cases
Refunds for articles
specified in
Part 1 76.1 of the Criminal Code
(full)
- if the damage caused to the budget system as a result of the crime is compensated in full.
2) For the purposes of this article, compensation for damage caused to the budget system of the Russian Federation means payment in full of arrears, penalties and fines in the amount determined in accordance with the legislation on taxes and fees and (or) legislation on compulsory social insurance against accidents in the Russian Federation. production and occupational diseases, taking into account the calculation of the amount of penalties and fines presented by the tax authority or the territorial body of the insurer.
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Features of termination of cases
Refund
for
part 2 76.1
- full, 2 times the amount, before deliberative
3) The court, as well as the investigator with the consent of the head of the investigative body or the investigator with the consent of the prosecutor, terminates criminal prosecution
if there are grounds provided for in Articles 24 of the Code of Criminal Procedure and 27 of the Code of Criminal Procedure , and in cases provided for in Part 2 76.1 of the Criminal Code in relation to a person suspected or accused of committing a crime under articles:
Part 1 146
,
part 1 147
,
part 5
-
part 7 159
,
part 1 159.1
,
part
1 159.2 , part 1 159.3
, part
1 159.5
,
part 1 159.6
,
part 1 160
,
part 1 165
,
170.2
,
170.2
,
part 1
-
part 1.1 171.1
,
part 1 172
,
176
,
177 178
,
part
1 - part 3 180 , part 1 - part 2 185
,
185.1
,
part 1 185.2
,
part 1 185.3
,
part 1 185.4
,
part 1 185.6
,
part 2 and part 4 191, 192
,
part 1 193
,
part 1 - part 2 194
,
195
,
196
,
197
,
199.2 of the Criminal Code
;
3.1) The court, as well as the investigator, with the consent of the head of the investigative body, if there are grounds provided for in Part 3 76.1 of the Criminal Code, terminates criminal prosecution
against a person suspected or accused of committing a crime under Articles:
193 ,
Part 1 - Part 2 194 , 198 , 199 , 199.1 , 199.2 of the Criminal Code .
3.2) If the head of the investigative body disagrees with the termination of the criminal prosecution in accordance with Part 3 of this article, he issues a reasoned decision to refuse to terminate the criminal prosecution and the person against whom the criminal case was initiated, the Prosecutor General and the Commissioner are immediately notified of the decision. President for the protection of the rights of entrepreneurs.
4) Before the termination of criminal prosecution, the grounds for its termination must be explained to the person in accordance with Part 1, Part 3, Part 3.1 of this article,
Url Additional information:
- Part 2 27 Code of Criminal Procedure
the case does not end if the accused objects
— and the right to object to the termination of criminal prosecution.
Url Additional information:
- Part 2 27 Code of Criminal Procedure
the consent of the accused is required to terminate the case
- paragraph 21
Plenum No. 19 consent of the person to terminate the case
5) Termination of criminal prosecution on the grounds specified in Part 1, Part 3, Part 3.1 of this article is not allowed if the person against whom the criminal prosecution is terminated objects to this.
In this case, criminal proceedings continue as usual.
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The Constitutional Court of the Russian Federation checked the constitutionality of Articles 24 and 125 of the Code of Criminal Procedure of the Russian Federation
On June 15, 2022, the Constitutional Court issued Resolution No. 28-P on the complaint of citizen D.K. Mikhailov in the case of checking the constitutionality of clause 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation to the extent that on this basis a decision is made to refuse to initiate a criminal case due to the absence of corpus delicti in the act without first resolving the issue of the existence of a crime event, as well as on the issue of the court verifying the legality and validity of the decision to refuse to initiate a criminal case affairs.
It can be stated that the Constitutional Court made a completely logical and well-founded decision, in which it specifically stated that if during the pre-investigation check the circumstances of the crime itself were not established, then the decision to refuse to initiate a criminal case must be made on the grounds specified in paragraph 1 of Part 1. 1 tbsp. 24 of the Code of Criminal Procedure of the Russian Federation - absence of a crime event. In addition, the Constitutional Court again considered the topical issue of judicial control over decisions made by officials at the pre-trial stage of proceedings.
Below I will highlight the main aspects of the Resolution:
1. The absence of the event itself, in relation to which the issue of initiating a criminal case is being considered, as well as the non-involvement of the person being inspected in it, means the absence of prerequisites for investigating the issue of the existence of a crime provided for by criminal law. Therefore, the absence of a crime in itself already means the absence of its elements. At the same time, the absence of corpus delicti in an act, on the one hand, and the absence of a crime event, as well as non-involvement in its commission, on the other hand, although recognized as equally rehabilitative, are not identical grounds for terminating a criminal case or criminal prosecution and therefore are not can replace each other.
Only when factual circumstances are established, using criminal procedural means, indicating the presence of a socially dangerous act containing objective signs of a crime, is it possible to further legal assess the behavior of a person for the presence or absence of corpus delicti as grounds for criminal liability.
Consequently, in relation to the stage of initiating a criminal case, when the question of the availability of sufficient data indicating the signs of a crime that can serve as a basis for initiating a criminal case is being decided, the absence, based on the results of checking a report of a crime, of sufficient data on the commission by a person of the most socially dangerous act containing the signs crime involves the issuance of a decision to refuse to initiate a criminal case on the grounds provided for in paragraph 1 of Part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation (absence of a crime event). At the same time, since the refusal to initiate a criminal case due to the absence of corpus delicti in the act is allowed only in relation to a specific person (Part 1 of Article 148 of the Code of Criminal Procedure of the Russian Federation), then the application of this basis (Clause 2 of Part 1 of Article 24 of the Code of Criminal Procedure of the Russian Federation ), involves preliminary confirmation by collected evidence of the fact that a particular person has committed the most socially dangerous act in order to make a legal, well-founded and motivated procedural decision.
2. Within the meaning of Article 125 of the Code of Criminal Procedure of the Russian Federation, during judicial consideration of complaints against a decision to refuse to initiate a criminal case and to terminate it, the court, within the limits of its powers arising from the nature of judicial control at the stage of preliminary investigation, may consider the issue regarding the correctness of the grounds for refusal in initiating or terminating a criminal case. When considering a complaint according to the rules of this article, the court should not, in order to avoid distorting the essence of justice, limit itself only to the fulfillment of the formal requirements of the criminal procedure law and refuse to assess the presence or absence of a legal reason and basis for refusing to initiate or terminate a criminal case, the factual validity of the complained actions (inaction) ) and solutions.
The court is obliged to examine the materials of the case that served as the basis for refusing to initiate a criminal case, and also check whether the preliminary investigation body took into account all the circumstances, including those specified in the complaint, which could significantly influence its conclusions. Otherwise, it would make it impossible for the court to assess the legality and validity of the decision to refuse to initiate a criminal case, would make the court’s decision on this issue dependent on the position of the prosecution, would indicate an irrefutable presumption of legality, validity and motivation of the procedural decision made by it, finality and indisputability its conclusions regarding the establishment of circumstances giving grounds for qualifying an act as a crime constituting an event, the choice of grounds for refusing to initiate a criminal case, would be contrary to the goals of criminal proceedings and the role of the court as a judicial body.
Therefore, clause 2, part 1, art. 24 of the Code of Criminal Procedure of the Russian Federation in systematic connection with other provisions of this Code, including its Art. 125, also presupposes the authority of the court, when considering a complaint against the decision of the inquirer or investigator to refuse to initiate a criminal case, to comprehensively assess the legality and factual validity of such a decision , also taking into account the correctness of the choice of one of the rehabilitating grounds for this decision, taking into account all available in the materials, on the basis of which the corresponding decision was made, significant facts and circumstances that could significantly influence the conclusion about the existence of factual and legal grounds for refusing to initiate a criminal case, and the positions of the parties, including the person’s arguments about the absence (unproven) of the crime and involvement in its commission .
