Institution for the Exemption from Criminal Liability: Current Issues

of Law Enforcement

Leonid Evgenievich Shchetnev and Maya Aleksandrovna Klyuchnikova

Department of the organization of the penal system apparatuses activities and special events, Federal State Educational

Institution of Higher Professional Education

Faculty of Law, Vladimir Law Institute of the Federal Penitentiary Service, Vladimir, Russian Federation

Keywords: Exemption from criminal liability, preliminary investigation bodies, criminal case, criminal prosecution.

Abstract: The article focuses on the issues that arise in the law enforcement activities of the preliminary investigation

bodies and the court, regarding the legal sufficiency for exempting suspects, accused, defendants from

criminal liability. In a number of situations, officials, who are required to make a decision on exemption from

criminal liability according to the Special Part of the Criminal Code of the Russian Federation, represent a

behavioral strategy concerning a range of variable situations aimed at exemption from criminal liability for

terminating a criminal case on the grounds provided for by the Criminal Procedure Code of the Russian

Federation. The goal of the research is to identify conflicts in these rules enforcement and determine possible

ways of applying the institution of exemption from criminal liability not only at judicial, but also at pre-trial

stages of the criminal process, based on the analysis of the relevant norms of the Criminal Code of the Russian

Federation and the Criminal Procedure Code of the Russian Federation. Methodological basis: general

scientific (analysis and synthesis, dialectical method) and special scientific research methods (system-

structural, technical) were used in the work. The main tasks of the research are to analyze the criminal and

criminal procedure legislation of the Russian Federation on the exemption of suspects, accused, defendants

from criminal liability and the practice of authorized subjects of criminal proceedings based on its application.

The relevance of the work is determined by a number of proposals of the authors aimed at improving the

legal regulation of the application of the institution for exemption from criminal liability. In the final part of

the article, the authors summarize that a number of norms of criminal and criminal procedural legislation

aimed at the legal regulation of exemption from criminal liability require transformation, since they are

extrapolated as conflicts to each other.

1 INTRODUCTION

In present-day realities of the Russian society

development, a fairly common problem faced by

most employees of the preliminary investigation

bodies and judges is due to situations related to

exemption from criminal liability.

The attention of a number of lawyers was attracted

by both general and specific issues that reveal the

features of certain types of exemption from criminal

liability, raised in the theory of criminal law and

criminal procedure. Analyzing the works of T.G. G.

Poniatovskaya, we have found that the author raises a

significant problem regarding the conditions and

grounds for exemption from criminal liability and

postulates that they should be presented with a clear

motivation, according to which state institutions

consider it possible to refuse to fulfill their duties and

offer conditions for exemption from criminal liability,

determined by the interests of protecting subjects of

criminal law and criminal procedure from criminal

encroachments (Ponyatovskaya, 2015).

We cannot but agree with N.Yu. Skripchenko that

the conceptual and categorical thesaurus, legal

determinism, goals, as well as other measures of the

criminal law order will be relevant for a long time

(Skripchenko, 2017).

Of course, we are bound to note the depth of

thought of D.N. Sergeev, who states that the Criminal

Code of the Russian Federation most directly affects

the destructive processes of society and any

miscalculation of the legislature or the ambivalence

of certain legal norms can initiate an increase in

236

Shchetnev, L. and Klyuchnikova, M.

Institution for the Exemption from Criminal Liability: Current Issues of Law Enforcement.

DOI: 10.5220/0010634600003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

236-242

ISBN: 978-989-758-532-6; ISSN: 2184-9854

traditional and innovative criminal acts (Sergeev,

2018).

Yu.E. Pudovochkin, A.A. Tolkachenko reminded

us of an important thesis, which is that criminal

legislation does not following the path of reducing the

possibilities for exemption from liability.

Every year, federal laws made appropriate

changes to the norms of the Criminal Code of the

Russian Federation and the Criminal Procedure Code

of the Russian Federation on exemption from

criminal liability and termination of a criminal case,

expanding the grounds for their application, although

the assessment of such changes in law enforcement

practice and scientific literature is far from always

strongly positive (Pudovochkin, Tolkachenko, 2020)

...

This article will touch upon issues that do not

seem clear concerning the relationship of the

application of the institution for exemption from

criminal liability and the practice emerging in law

enforcement. An attempt has been made to actualize

this institution in the modern sociocultural paradigm.

2 MATERIALS AND METHODS

To solve the problems posed by the authors, materials

of criminal and criminal procedural legislation, the

judicial practice of the Courts of General Jurisdiction

and the Constitutional Court of the Russian

Federation were used, as well as the opinion of a

number of Russian scientists who have studied such

issues. In the course of the research, general scientific

(analysis and synthesis, dialectics) and specific

scientific research methods (system-structural,

technical) were used.

3 RESULTS AND DISCUSSION

Starting to prepare this research, we analyzed not only

regulatory legal acts, but also a number of

monographic publications, articles by leading

lawyers. In particular, L.V. Lobanova draws attention

to the fact that in the Russian criminal law one of the

mobile normative formations is the institution of

exemption from criminal liability. (Lobanova, 2016).

This postulate seems to fit the quintessence of the

human nature: self-love does not allow many

individuals to objectively assess themselves and

admit their guilt. In addition, it should be noted that

Articles 75–76.2, 78 Chap. 11 of the Criminal Code

of the Russian Federation reveal the possibility

according to which suspects or accused of committing

crimes are exempted from criminal liability. In

particular, today we can distinguish five points that

reveal the grounds on which suspects or accused are

exempted from criminal liability: active repentance;

settlement with the injured party; compensation for

harm; imposition of a court fine; expiration of the

statute of limitations.

According to Art. 75 of the Criminal Code of the

Russian Federation active repentance is a confession

and performance of other actions provided for by the

Criminal Code of the Russian Federation. The

issuance of a confession by the competent authority

assumes that it is given voluntarily, subject to the

requirements of Part 1.1 Art. 144 of the Criminal

Procedure Code of the Russian Federation.

Analyzing clause 1 of Part 2 of Art. 75 of the

Criminal Procedure Code of the Russian Federation,

it can be concluded that it is impossible to consider

the suspect’s and the accused’s testimony as

arguments, which are presented during the pre-trial

proceedings in a criminal case without a lawyer,

including those situations when the suspect or the

accused himself refuses it and does not confirm them

in court. In this regard, if the information presented in

the confession is recognized by the court as

incompetent evidence, then make a decision to

exempt from criminal liability under the Art. 75 of the

Criminal Code of the Russian Federation will not be

possible, and the grounds for checking compliance

with the provisions of Part 1.1 of Art. 144 of the

Criminal Procedure Code of the Russian Federation

will no longer exist.

In addition, the position of E. V. Blagov is very

interesting. According to the researcher, active

repentance serves as the basis for exemption from

criminal liability, if due to active repentance it

“ceased to be socially dangerous”. From the

scientist’s point of view, a confession, initiating the

crime solving, compensation for damage or any other

form of prevention of harm due to a crime, does not

exempt a person from criminal liability. (Blagov,

2018).

A. V. Korshunov and R. A. Zabavko also rightly

note that Art. 75 of the Criminal Code of the Russian

Federation and Art. 28 of the Criminal Procedure

Code of the Russian Federation are devoted to one

legal phenomenon. The Criminal Code of the Russian

Federation provides for active repentance as a basis

for the termination of criminal prosecution, and the

Criminal Procedure Code of the Russian Federation

determines the procedure for its termination.

Moreover, both articles provide for termination

conditions (Korshunov, Zabavko, 2016).

Institution for the Exemption from Criminal Liability: Current Issues of Law Enforcement

237

Settlement with the injured party acts as the

second ground for exemption from criminal liability.

At the same time, this ground applies only to a person

who break the law for the first time and the crime is

characterized as medium gravity when paying off

damage to the injured. Art. 35 of the Criminal

Procedure Code of the Russian Federation states that

a criminal case is terminated by an official of the

preliminary investigation body and the court, based

on the statement of the injured or his legal

representative.

It should be noted the scrupulousness of the

researcher E.L. Sidorenko, who drew attention to the

fact that a person, who has committed a crime of

small or medium gravity even for the first time leads

to the emergence of a paradigm of legal relations

concerning settlement with the following parties: the

injured and the accused; the state and the injured; the

state and the offender.

Settlement with the injured occurs, as a rule,

subject to a number of conditions, such as reaching a

consensus between the offender and the injured, full

compensation for harm, compensation for losses.

Each person is distinguished by his character,

different level of upbringing, reflection and self-

acceptance. There are situations when the injured

does not consider it possible to settle with the accused

and does not even consider the restorative actions

offered to him. In this case, the perpetrator is not

exempt from criminal liability.

E.L. Sidorenko notes that the second ground for

exemption from criminal liability - settlement with

the injured - is marked by dualism: the injured, as a

rule, is interested in being compensated for the harm

caused; the perpetrator is interested in staying free.

But, on the other hand, the perpetrator may not

compensate for the harm caused and state institutions

cannot oblige him to do otherwise. (Sidorenko, 2017).

Settlement with the injured presupposes the

establishment of clear compensation for the injured as

a result of the committed crime. In a number of cases,

settlement is formal in nature and is limited to

resuscitation of the intra-family climate and the

bringing of verbal repentance. N.E. Grigoriev

rightfully clarifies that the accused, even without

compensating for the harm caused, can avoid criminal

liability, based on the forgiveness of the injureds.

(Grigoriev, 2017).

The third ground for exemption from criminal

liability is compensation for harm (Art. 76.1 of the

Criminal Code of the Russian Federation). The

application of this ground is possible only according

to those strictly defined provisions in Art. 76.1 of the

Criminal Code of the Russian Federation, within

strictly defined terms and in the amount to be

reimbursed. The subject of criminal proceedings

exempts the perpetrator from criminal liability,

guided by Art. 28.1 of the Criminal Procedure Code

of the Russian Federation. As usual, criminal

proceedings will continue if the perpetrator objects to

a non-exonerating ground. The third ground of

exemption from criminal liability, as well as the two

previous ones, are applicable only if the perpetrator

commits a crime for the first time. From the

Resolution of the Plenum of the Supreme Court of the

Russian Federation No. 19 dated June 27, 2013 “On

the application by courts of legislation regulating the

grounds and procedure for exemption from criminal

liability” (hereinafter: Resolution No. 19 dated June

27, 2013) we conclude that the person who has

committed a crime for the first time should be

considered as:

- person who has committed one or a number of

illegal acts, regardless of qualifications under one or

more articles of the Criminal Code of the Russian

Federation, but a prerequisite is a provision when the

perpetrator has not been punished for more than one

committed act;

- person to whom a guilty verdict was passed, but

at the time of the commitment of a new crime did not

enter into legal force;

- an individual who has committed an unlawful act

and has been convicted of a previous crime, the

sentence of which has entered into legal force, but

circumstances have been discovered that prevent the

person from being held criminally liable (expiration

of the statute of limitations for a previous crime,

cancellation or expungement of record);

- a person sentenced to criminal punishment for

which the sentence came into legal force, but as a

result of correlation, comparison and analysis of the

facts of the defendant's guilt

for which he was convicted, it was

unsaid and eliminated;

- an individual who has been previously exempted

from criminal prosecution and criminal liability.

Referring to O.V. Makarov, we postulate that

person who committed a crime for first time should

be recognized as a person who has not previously

committed a criminal act at all or, although he has

committed, but its criminal law consequences have

not survived, that is, the statute of limitations for

criminal liability has expired, the statute of

limitations for the execution of the court conviction

has been canceled or expunged (Makarova, 2015).

The imposition of a court fine is the fourth ground

for exemption from criminal liability. In common

with the previous ground, it concerns persons who

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have not previously break the law and the crime itself

is not dangerous for society, and the perpetrator

compensated for the damage or neutralized the harm

caused by the unlawful act. Analyzing the genealogy

of criminal liability, it can be summarized that a court

fine as ground is not a criminal punishment in the full

sense, but adds to the cohort of other criminal

measures. In this regard, the rules of Art. 46 of the

Criminal Code of the Russian Federation do not apply

to the imposition and execution of a court fine, which

follows from clause 7.1 of the Resolution of the

Plenum of the Supreme Court of the Russian

Federation No. 58 dated December 22, 2015 “On the

practice of imposing criminal punishment by the

courts of the Russian Federation” (hereinafter:

Resolution No. 58 dated December 22, 2015).

The fourth ground for exemption from criminal

liability is correlated with the amount of the

perpetrator's salary, the presence of his dependents,

property, and the amount of the court fine is strictly

differentiated.

The Constitutional Court of the Russian

Federation also draws attention to these

circumstances in its ruling No. 2137-O dated

September 27, 2018 “On the refusal to accept for

consideration the complaint of the citizen Evgeny

Alekseevich Klevtsov on violation of his

constitutional rights by Articles 43, 46 and 290 of the

Criminal Code of the Russian Federation”.

S.S. Shestalo stated that ignoring these rules

initiates a fine as an instrument of pressure on the

property detail of an individual, the aggregate of

whose income cannot act as an opportunity to pay a

court fine. (Shestalo, 2021).

We are impressed by the point of view of M.

Yusupov, proposing to supplement Art. 76.2 of the

Criminal Code of the Russian Federation on the

fourth ground. The author is absolutely right that the

Criminal Code of the Russian Federation contains

crimes, although they belong to the category of small

and medium gravity, but meanwhile, represent a high

social danger, in particular, this applies to crimes

under Part 2 of Art. 133, Part 1 of Art. 134, Part 1 of

Art. 135, Art. 240.1 of the Criminal Code of the

Russian Federation - against the sexual immunity of

minors. We fully share the author's opinion that the

court fine imposition will not be able to correct

criminals of this kind, but the law states that if a

person has not previously committed a crime, and

having committed it for the first time compensated for

the damage or otherwise made amends for the harm

caused by the crime, he can count on an exemption

from criminal liability if a court fine is paid.

(Yusupov, 2016).

If a person has committed several crimes of small

and medium gravity, the courts, when imposing the

amount of a court fine, are guided by the sanctions of

the article, which proceeds from the most stringent

liability. The review of judicial practice of exemption

from criminal liability with the court fine imposition

considers this approach more reasonable. (Belyaev,

Bagautdinov, 2019).

The fifth ground for exemption from criminal

liability is the expiration of the statute of limitations,

which inevitably depend on the gravity of the crime

being committed:

- two years, minor crimes;

- six years, crimes of medium gravity;

- ten years, a serious crime;

- fifteen years, an especially grave crime.

Parts 2-5 Art. 78 of the Criminal Code of the

Russian Federation determine special conditions

under which a person is exempted from criminal

liability, based on the expiration of the statute of

limitations. This decision is made by the preliminary

investigation bodies, within pre-trial proceedings and

by the court in judicial proceeding.

In order to deepen the analysis of the phenomenon

under study, we turned to the research of L. V.

Bukalerova and Ya. Yu. Shelmenkov, who proposed

a range of decisions taken by the court: in particular,

the judge can issue a decision to terminate the

criminal case at a preliminary hearing, based on Art.

239 of the Criminal Procedure Code of the Russian

Federation in the event that the statute of limitations

for criminal prosecution ended before the trial start.

Further, the court may terminate the criminal case

if there is no objection on the part of the accused. If

the accused applies for the hearing on the merits, then

the consideration of the criminal case materials

should be continued and an appropriate sentence must

be passed.

The severity of L.V. Bukalerova,

Ya.Yu. Shelmenkova researches revealed a conflict

of Part 1 of Art. 254 and Part 8 of Art. 302 of the

Criminal Procedure Code of the Russian Federation,

as well as non-compliance with the rule fixed in Part

8 of Art. 302 of the Criminal Procedure Code of the

Russian Federation, the provisions of Art. 78 of the

Criminal Code of the Russian Federation

(Bukalerova, Shelmenkova, 2013).

We also share the point of view of Yu.V.

Endoltseva is that the legislature is absolutely right

when it believes that it is impossible to apply the fifth

ground of exemption from criminal liability - the

expiration of the statute of limitations - in the event

that a person commits a new deliberate crime. The

logic is that the expediency of applying the fifth

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ground for exempting the perpetrator from criminal

liability is dictated not by the fact that the perpetrator

has not committed a new crime within a certain

period, but by the fact that this person did not evade

the court, but made it possible to bring him to justice

for an unlawful act within the time period specified

by the law (Endoltseva, 2013).

Of course, we cannot but agree with the researcher

V.N. Shikhanov that the use of the institution of the

expiration of the criminal statute of limitations is

possible only within the criminal proceedings.

(Shikhanov, 2020).

The imperative nature of the legal norms of the

Criminal Code of the Russian Federation obliges

officials to exempt the accused from criminal liability

only in case of compensation for harm and upon

expiration of the statute of limitations. As for the rest

of the grounds for exemption from criminal

prosecution, they can be implemented only at the

discretion of the inquirer, investigator or court.

The rest of the articles of the Criminal Code of the

Russian Federation speak only of the possibility of

exemption from criminal liability at the discretion of

the investigator, inquirer, or court.

The Criminal Procedure Code of the Russian

Federation similarly regulates the issues of

terminating a criminal case on the grounds we are

considering, provided for by the General Part of the

Criminal Code of the Russian Federation.

The exception is Art. 28.1 of the Criminal

Procedure Code of the Russian Federation, which

obliges an authorized official to terminate a criminal

case. The rest of the rules related to the criminal case

termination due to the circumstances under

consideration only provide such a right.

The decisions to exempt the perpetrator from

criminal liability and the termination of the criminal

case due to this are determined by the norms of

criminal and criminal procedural legislation.

Thus, Federal Law No. 533-FZ dated December

27, 2018 amended Art. 145.1 of the Criminal Code of

the Russian Federation "Failure to pay wages,

pensions, scholarships, benefits and other payments"

with note 2: “A person who has committed a crime

for the first time under parts one or two of this article

shall be exempted from criminal liability if, within

two months from the date of initiation of a criminal

case, he has fully paid off the arrears in the payment

of wages, pensions, scholarships, allowances and

other payments established by law, and also paid

interest (paid monetary compensation) in the manner

determined by the legislation of the Russian

Federation, and if his actions do not contain a

different corpus delicti”.

The same Federal Law amended Art. 76.1 of the

Criminal Code of the Russian Federation, expanding

the list of articles providing for exemption from

criminal liability in connection with compensation for

harm.

However, Art. 145.1 of the Criminal Code of the

Russian Federation was not included in this list. At

the same time, the legislature, by making the article

mandatory, obliged the authorized officials to act

strictly in accordance with its instructions, namely, to

exempt from criminal liability and terminate the

criminal case due to the repayment of debt to

employees.

Consequently, Art. 145.1 of the Criminal Code of the

Russian Federation should be enshrined in Art. 76.1

of the Criminal Code of the Russian Federation.

The binding norm of the Criminal Code of the

Russian Federation, postulating the obligation to

make a decision on exemption from criminal liability,

obliges officials to make a decision in favor of

choosing the option of exemption from criminal

punishment and termination of the criminal case on

the grounds provided for in the Criminal Procedure

Code of the Russian Federation.

Another problematic situation is the absence of

any repentance on the part of the accused and the fact

of his settlement with the injureds. At the same time,

when the court decides to terminate a criminal case

on the basis of a court fine, it is guided by such basic

criteria as repentance of the person who committed

the crime and the fact that the crime has lost its public

danger. In addition, the consent of the suspect and the

accused is required for the court to make this

decision. Guided by Resolution No. 19 dated June 27,

2013, the judge decides to grant the petition if there

are no circumstances characterizing the social danger

of the perpetrator and preventing the application of

the fifth ground of exemption from criminal liability

to him - the imposition of a court fine.

These may include, in particular, the following

circumstances:

- the person brought to criminal responsibility did

not confirm in the court session his consent to the

termination of the criminal case or criminal

prosecution on this ground;

- information on the participation of persons

brought to criminal responsibility in the committed

crime, set out in the decision to initiate a petition for

the application of a criminal measure to him in the

form of a court fine, does not correspond to the actual

circumstances of the case;

- a criminal case or criminal prosecution should be

terminated on other grounds provided for by law

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(clause 2, Part 5, Art. 446.2 of the Criminal Procedure

Code of the Russian Federation).

Of course, the court fine imposition as the ground

for the criminal prosecution termination should be

clearly reasoned and logical, based on par. 2 clause

25.5 of the Resolution No. 19 dated June 27, 2013.

The unjustified presentation by the court of the

argumentation and motivational component is the

basis for the cancellation of the court fine imposition

as an alternative to criminal prosecution.

In this context, we will describe the current

situation as follows: the accused (suspect) petitions

the person conducting the investigation to exempt

him from responsibility due to the note to Art. 145.1

of the Criminal Code of the Russian Federation.

However, he does not repent of his deed, does not

admit guilt in committing a crime, motivates the

temporary non-payment of wages by production

necessity, a forced fact to preserve the working

capacity of the enterprise. His settlement with the

injureds was not as such. The enterprise employees,

to whom the payment of wages was delayed, received

compensation for the untimely received funds, do not

consider themselves injureds, and object to

recognizing them as injureds. In addition, they

personally supported the employer in resolving the

issue of delayed wages. The accused (suspect) objects

against the criminal case termination, on the grounds

provided for by Art. 25.1 of the Criminal Procedure

Code of the Russian Federation, if it is possible to

terminate it on other grounds, without paying any

fine. The statute of limitations for bringing a person

to justice did not come up, but under Art. 28.1 of the

Criminal Procedure Code of the Russian Federation

does not apply to Art.145.1 of the Criminal Code of

the Russian Federation. We approached the situation

that the person conducting the investigation of the

case, having a lawful and substantiated petition of the

accused (suspect), based on the imperativeness of

Note 2 to Art. 145.1 of the Criminal Code of the

Russian Federation on exempting him from liability,

is formally obliged to satisfy it, but he cannot

terminate the criminal case on legal grounds provided

for by the Criminal Procedure Code of the Russian

Federation.

As an example, we can cite the situation

concerning the convict S., whom the Shchuchansky

District Court of the Kurgan Region convicted under

Part 1 of Art. 161 of the Criminal Code of the Russian

Federation. As mitigating circumstances, the court

recognized C's confession, active cooperation,

compensation for damage, but indicated that it was

impossible to terminate the criminal case due to the

court fine imposition, since there were no actual

obstacles to his exemption from criminal liability

with the court fine imposition. In this regard, the

Kurgan Regional Court overturned the conviction

against S., the criminal case was terminated. C. was

released. The ground was Art. 25.1 of the Criminal

Procedure Code of the Russian Federation.

An example of the termination of criminal

prosecution on other grounds, one can cite a criminal

case considered by a magistrate of judicial district No.

3 of the Oktyabrsky Court District of Ivanovo, which

refused to satisfy the investigator's petition to

terminate the criminal case and criminal prosecution

and the imposition of a court fine, since the accused

did not confirm a petition and a decision was made to

terminate the criminal prosecution and criminal case

on other grounds. Summarizing the above, it can be

stated that in present-day realities, a situation often

arises when the presence of a norm of the Special Part

of the Criminal Code of the Russian Federation does

not mean that it can be implemented, since the

criminal legislation needs to be improved.

Thus, in practice, a situation arises when the norm

of the Special Part of the Criminal Code of the

Russian Federation provides for the obligation to

make a decision to exempt a person from criminal

liability, and the implementation of this right in

accordance with the relevant norms of the General

Part of the Criminal Code of the Russian Federation

and the adoption of a legal decision in a criminal case

according to the requirements of criminal procedure

legislation is not possible.

4 CONCLUSIONS

The main conclusion reached by the authors is the

presence of conflicts and gaps in a number of norms

of criminal and criminal procedure legislation, which

were identified and considered in the work test. This

imperfection of the law will be a priori possible to

eliminate only by appropriate amendments to the

above-mentioned legislative acts, and the sooner this

happens, the sooner the quality of the law is

improved.

It seems that the results of our brief research

indicate an urgent need to improve the legal

regulation of the application of the institution of

exemption from criminal liability in order to increase

the level of efficiency and quality of law enforcement

activities of the preliminary investigation bodies and

the court.

Institution for the Exemption from Criminal Liability: Current Issues of Law Enforcement

241

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exemption from criminal liability with the court fine

imposition. In the Criminal Law. 6. pp. 122-128.

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