Alternative measures to criminal prosecution are widely used in Western countries: police warning (especially for minors), mediation (judicial and police) in England, unconditional refusal to prosecute, taking into account the requirement of expediency, fiscal fine in Scotland, criminal -legal mediation, a fine by agreement in France, etc.

The prevalence of these measures is evidenced, for example, by official data from the French criminal justice system; in 1996, alternatives to criminal prosecution were applied in 90,128 criminal cases, in 1997 - in 101,341 cases, in 1998 - in 163,819 cases, i.e. they were applied to 15-20% of all persons who committed a crime.

The use of other alternative measures is explained by a certain limitation of the social possibilities of criminal punishment and the negative consequences associated with its application.

2. Essence and legal implications liberation from criminal liability... In clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 No. 19 "On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability", it is noted that exemption from criminal liability is a refusal of the state to implement it in relation to the person who committed a crime (in particular, from the conviction and punishment of such a person). However, we emphasize that exemption from criminal liability means only a refusal to convict a person in the form of a conviction, but not a refusal in general from the state censure of the crime and the perpetrator. Exemption by a court or other competent authority from criminal liability, which presupposes the recognition of the fact that the person concerned has committed a crime, also testifies to the state censure of both the crime and the person who committed it. The only difference is that if, when prosecuted, this censure is expressed in a conviction, then when released from it, it is reflected in the ruling of the court or other competent authority, which shows a certain leniency to the person who committed the crime. Therefore, exemption from criminal liability also has a certain special preventive effect.

Exemption from criminal liability in all its forms excludes not only the imposition of punishment, but also the conviction of a person on behalf of the state, i.e. negative socio-legal assessment of both the person and the committed criminal act, given by the court in the conviction. Upon release from criminal liability, a conviction is not imposed, as is the case with release from criminal punishment, and the person in the legal sense is considered not to have committed a crime. Upon release from criminal liability, all criminal measures are to be canceled (if they have been applied). procedural compulsion(preventive measure, arrest of property). The confiscated documents, things, etc. are returned to the released person.

At the same time, exemption from criminal liability does not exclude the possibility of bringing to other types of liability: civil, administrative, disciplinary, etc.

The question of the criminal legal consequences of exemption from criminal liability has been discussed for a long time in the theory of criminal law. Some scientists (I.M. Halperin, S.G. Kelina, etc.) believe that exemption from criminal liability does not eliminate the legal consequences of a crime, and if the released person commits a new crime within the statute of limitations for the first criminal act, it must be recognized as repeated. In turn, many specialists proceed from the fact that exemption from criminal liability eliminates criminal-legal consequences in relation to the guilty person, and therefore, in the legal sense, he is considered not to have committed a crime. This position seems to be more acceptable when explaining the legal consequences of unconditional types of exemption from criminal liability.

If release from liability is carried out under certain conditions, then it really does not completely eliminate all legal consequences, and if they are not observed, the perpetrator may be held criminally liable for a crime in connection with the commission of which an act of release was adopted.

In order to increase the social and preventive effect, it would be necessary to provide for the conditional nature of those types of exemption from criminal liability that can be applied at the discretion of the court or other competent authority. The commission of willful crime during the statute of limitations for prosecution for a previous criminal act.

In accordance with the Code of Criminal Procedure of the Russian Federation, all types of exemption from criminal liability can be applied by the court, as well as by the investigator and the body of inquiry with the consent of the prosecutor. Moreover, release from criminal liability is possible both with the termination of an already initiated criminal case, and without its initiation. This provision of the law has caused contradictory assessments of specialists. Some scientists, for example A.A. Piontkovsky, consider it reasonable to grant the investigator and the body of inquiry the right to release from criminal liability. Others, on the contrary, believe that it is contrary to the Constitution of the Russian Federation. Part 1 of Art. 49 of the Basic Law of the Russian Federation is fixed: “Everyone accused of committing a crime shall be considered innocent until his guilt is proved in the manner prescribed by federal law and established by the person who entered into legal force by a court verdict ".

The current Criminal Code of the Russian Federation refused all previously known types of exemption from criminal liability with subsequent social impact on the person who committed the crime. As you know, in soviet period the history of Russia one of the main postulates was the wide involvement of labor collectives, public, amateur organizations in the fight against crime. World practice shows that it is quite difficult, if not possible at all, to provide a solution to this problem with only one criminal justice body without reliance on civil society.

However, one cannot fail to note certain imbalances that took place in our national history... The officially cultivated thesis about the impeccability of the socialist system in terms of the causes of crime objectively led to belittling the role of state bodies and, at the same time, to exaggerating the capabilities of the "public forces" in the fight against crime. This was especially pronounced in the late 50s and early 60s. XX century Of course, the main burden in the fight against crime in any society should be borne by the organs of the state, more precisely, its mechanism, specially created for this. And the institutions civil society can and must contribute to the solution of this by no means an easy task, but not replace it.

Therefore, if the refusal of the Criminal Code of the Russian Federation to release from criminal liability with the transfer of the case to a comradely court seems to be quite justified, then this cannot be said with regard to the negative attitude of the legislator to release from criminal liability with the transfer of the guilty party to the bail of a public organization or a labor collective. By the way, not in all the former Soviet republics that have become independent states, refused to release from criminal liability with the transfer of a person to bail.

In particular, it is provided for in Art. 47 of the Criminal Code of Ukraine.

Thus, exemption from criminal liability is an institution of Russian criminal law, in which the substantive nature of the crime is manifested, the ideas of stimulating positive post-criminal behavior and social compromise, the principles of justice, humanism and the requirements of differentiation and individualization of criminal law are implemented. Exemption from criminal liability is an act of a body authorized by law, according to which the person guilty of committing a crime is small, moderate, and sometimes a more serious crime, and if it in itself does not represent a great public danger is exempt from conviction in the form of a conviction.

Exemption from criminal liability by its legal nature differs from the so-called rehabilitation, i.e. non-prosecution of a person who is not guilty of a crime.

So, in accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation is not a crime an action (inaction), although formally and containing signs of any act provided for by the Criminal Code of the Russian Federation, but due to its insignificance does not pose a public danger. Therefore, in this case, it may not be about release, but about non-prosecution. For the same reasons, it is necessary to distinguish between exemption from criminal liability from the institutions of voluntary refusal (Article 31 of the Criminal Code of the Russian Federation), necessary defense (Article 37 of the Criminal Code of the Russian Federation), extreme necessity (Article 39 of the Criminal Code of the Russian Federation), causing harm during the arrest of a person who committed a crime (Art. 38 of the Criminal Code of the Russian Federation), under physical or mental coercion (Art. 40 of the Criminal Code of the Russian Federation), at reasonable risk (Art. 41 of the Criminal Code of the Russian Federation), as well as in execution of an order or order (part 1 of Art. 42 of the Criminal Code of the Russian Federation) ... In all these cases, the person is considered not to have committed a crime, therefore, the question of release cannot arise here. You can only release the one who has committed a criminal act.

The institution under consideration acts as a real manifestation of the principles of differentiation and individualization of criminal responsibility, humanism and justice.

3. Grounds for exemption from criminal liability. In the theory of criminal law, it is formulated general concept exemption from criminal liability and the grounds for its application.

The need to apply one or another type of exemption from criminal liability arises only when a specific person has committed a crime. In this case, on the one hand, there is a formal basis for bringing this person to criminal responsibility, and on the other, there are grounds that allow him to be exempted from this responsibility.

Each criminal law provision is based on a social message, a social reason, due to the action of which it arises and finds confirmation in the law. Respectively live public life is, as they say, a material prerequisite. However, the law is a purely formal phenomenon. In this regard, the formal basis for release is the criminal law itself, its prescription for release if there is certain conditions.

Exemption from criminal liability for general rule can be applied to persons who have committed crimes for the first time, of minor or medium severity (Articles 75, 76, 76¹, 90 of the Criminal Code of the Russian Federation).

As for the exemption from criminal liability in connection with the expiration of the statute of limitations and under the act of amnesty, it can also be applied to persons guilty of grave and even especially grave crimes, since in view of the correction of the guilty person within the time established by law (Article 78 of the Criminal Code of the Russian Federation) term becomes impractical from the point of view of the tasks of criminal legislation, his bringing to criminal responsibility.

Exemption from criminal liability under the amnesty act is also not strictly conditioned by a specific category of crimes.

Exemption from criminal liability in all its forms is possible if there are objective and subjective grounds.

Whether there is a reason is revealed by the presence of conditions established by the legislator. This serves as a factor allowing to make a decision, to implement the prescription of the corresponding norm.

Objectively, the basis is the person's compliance with the requirements of the norm, which allows, in response to the appropriate behavior, to release the person from criminal liability.

The subjective reason lies in the fact that the person who committed the crime ceases to be socially dangerous or the degree of his public danger is reduced to such a level at which it becomes necessary to exempt from criminal liability. When characterizing the subjective basis, the legislator points to circumstances that depend on the will of the perpetrator (active repentance, reconciliation with the victim, the first time a crime was committed, failure to commit a new crime during the statute of limitations).

Exemption from criminal liability is an institution of Russian criminal law, in which the material definition of the concept of a crime, the principles of justice, humanism, differentiation and individualization of responsibility, etc. are manifested. in the commission of a crime of small, medium gravity, and sometimes a grave crime, if in a particular case it does not pose a great public danger, is freed from the burden of criminal liability.

Types of exemption from criminal liability

1. Legal content different types exemption from criminal liability. The criminal legislation of Russia provides for the following types release from criminal liability of persons who have committed a crime:

• in connection with active repentance (Art. 75 of the Criminal Code of the Russian Federation);
• in connection with the reconciliation of the perpetrator with the victim (Art. 76 of the Criminal Code of the Russian Federation);
• in cases of crimes in the sphere economic activity(Article 76.1 of the Criminal Code of the Russian Federation);
• in connection with the expiration of the statute of limitations (Art. 78 of the Criminal Code of the Russian Federation);
• in connection with the amnesty (Art. 84 of the Criminal Code of the Russian Federation);
• in relation to a minor (Art. 90 of the Criminal Code of the Russian Federation).

In recent years, some specialists have begun to recognize release in connection with active repentance as one of the types of exemption from criminal liability. Indeed, release on this basis fully meets the characteristics of the institution of exemption from criminal liability, insofar as it applies to a person guilty of a crime, and in the presence of certain behavior with his hand. The specificity of this type of exemption from criminal liability earlier, according to the Criminal Code of the RSFSR in 1960, was that it was provided for by a number of norms of the Special Part.

In the current legislation, exemption from criminal liability in connection with active repentance, along with other types of release, is provided for in the General Part of the Criminal Code of the Russian Federation (Article 75) and a number of articles of the Special Part of the Criminal Code of the Russian Federation (Articles 126, 205, etc.).

2. Criteria for the classification of types of exemption from criminal liability. One of the criteria for the classification of types of exemption from criminal liability is the grounds for their application.

The provisions of the criminal law governing the application of exemption from criminal liability in connection with active repentance, reconciliation with the victim and the act of amnesty (Articles 75, 76, 84 of the Criminal Code of the Russian Federation) indicate that a person who has committed a crime may be exempted from criminal liability. In other words, the legislator assigns the decision of this issue to the discretion of the body authorized by the law. Thus, he orients the law enforcement officer to establish the grounds for exemption from criminal liability in each specific case. If the grounds for release are established, then the body of inquiry, investigator, prosecutor or court must take a decision to release the person from criminal liability.

Part 2 of Art. 84 of the Criminal Code of the Russian Federation, regulating the application of amnesty, the same wording is used: "By the act of amnesty, persons who have committed crimes may be exempted from criminal liability." On the one hand, this norm, following the Constitution of the Russian Federation (clause "e" of Art. 103), secures representative body Russian Federation the right to declare amnesty, and at the same time it provides for the obligation of the body applying the amnesty act to release a specific person from criminal liability. This conclusion is confirmed by the content of Part 1 of Art. 27 of the Criminal Procedure Code of the Russian Federation, in which, among the circumstances excluding criminal proceedings, an act of amnesty is indicated, which eliminates the application of punishment for the committed act.

Therefore, on the basis of application, exemption from criminal liability under an amnesty and in connection with the expiration of the statute of limitations should be attributed to the group of types of exemption from criminal liability, the use of which is mandatory for the relevant authority. Part 1 of Art. 78 of the Criminal Code of the Russian Federation stipulates that a person is released from criminal liability if the statute of limitations has expired from the date of the crime. The imperative nature of this norm, as in the case of the application of the act of amnesty, is due to the fact that for a positive solution to the issue of exemption from criminal liability, it is not required to establish any additional data, for example, characterizing the identity of the perpetrator, but it is enough only to establish that the statutory provision has expired. the limitation period or the adopted act of amnesty removes the punishment for the committed act. The same approach should be applied to exemption from criminal liability in cases of crimes in the sphere of economic activity (Article 76¹ of the Criminal Code of the Russian Federation).

V new edition h. 2 tbsp. 75 of the Criminal Code of the Russian Federation also provides for exemption from criminal liability only if there are grounds provided for in the relevant articles of the Special Part of the Criminal Code of the Russian Federation.

Exemption from criminal liability due to the expiration of the statute of limitations, by act of amnesty, as well as in accordance with Part 2 of Art. 75 of the Criminal Code of the Russian Federation differs from other types also in that they can be applied against persons guilty not only of a crime of small or medium gravity, but also grave and even especially grave ones.

It differs in certain specifics legal regulation exemption from criminal liability in connection with active repentance. This kind exemption, unlike others, is regulated by the norms of not only the General, but also the Special part of the Criminal Code of the Russian Federation (Articles 204-206, etc.).

In the literature, the possibility of applying exemption from criminal liability is linked to the achievement of the goals set for the punishment. The totality of the conditions provided for in the law, emphasizes A.V. Naumov, allows us to conclude that exemption from criminal liability is applied when there is no point in bringing a specific person to criminal liability, and the goals of punishment in these cases can be achieved without further implementation. In his opinion, even when exempt from criminal liability, to a certain extent, the implementation of such goals of punishment as restoration of social justice and general crime prevention. Most types of exemption from criminal liability are based on the so-called idea of ​​compromise, according to which the person guilty of a crime is guaranteed release from criminal liability or only mitigation of punishment in exchange for committing acts required by law (Kh.D. Alikperov). An acceptable compromise between a criminal and the state, between a criminal and a victim, can really increase the social significance of the criminal law.

Thus, the institution of exemption from criminal liability is manifested in its five varieties. All types of exemption from criminal liability are united by the fact that their application excludes the state conviction of a person and the crime committed by him through a conviction by a court, sentencing and other legal consequences. Some norms of the Criminal Code of the Russian Federation, providing for exemption from criminal liability, are imperative, while others - dispositive nature, i.e. provide the relevant authority with the opportunity to positively resolve the issue, taking into account the circumstances characterizing the crime and the identity of the perpetrator.

Exemption from criminal liability in connection with active repentance

1. The legal content of active repentance. Active repentance under the 1960 RSFSR Criminal Code was considered as a circumstance mitigating responsibility, but not exempting from it.

In paragraphs 1 and 9 of Art. 38 of this Code as mitigating circumstances was found to have prevented the harmful consequences of the crime committed, or voluntary refund the damage caused, or the elimination of the harm caused, as well as sincere repentance, confession and active assistance in solving the crime. To recognize the fact of active repentance, it was enough to establish the presence of any one of the listed actions.

Active repentance, as opposed to voluntary renunciation of the crime, always follows after the end of the crime, when in in full a criminal act has been carried out and the corresponding consequences have occurred. At the same time, notes to individual articles

A special part of the 1960 Criminal Code contained provisions according to which persons who committed the relevant crimes were exempted from criminal liability in connection with active repentance.

The subjective grounds for exemption from criminal liability in connection with the reconciliation of the person who committed the crime with the victim are circumstances such as the commission of a criminal act for the first time and positive post-criminal behavior of the perpetrator (compensation or making amends, an apology to the victim), which made it possible to achieve reconciliation with the victim.

Release from criminal liability in connection with reconciliation is final and does not subsequently entail the application of any legal, educational or social measures to the person who committed the crime.

Thus, exemption from criminal liability for reconciliation of the accused and the victim is possible only in relation to a person who first committed a crime of small or medium gravity and made amends for the harm caused, if there is reconciliation with the victim. Other circumstances that characterize the crime and the identity of the perpetrator (remorse or non-recognition of his guilt, the motives that prompted the victim to reconcile with the accused, etc.) cannot influence the refusal to exempt from criminal liability.

Exemption from Criminal Liability in Cases of Crimes in the Sphere of Economic Activity

1. The criminal-legal and social essence of this type of liberation has a certain specificity, due to the peculiarities public relations in the sphere of its regulation. This type of release was not known to the criminal legislation of the Russian Federation, this norm was consolidated only in 2011 (included in the Criminal Code of the Russian Federation by the Federal Law of December 7, 2011 No. 420-FZ "On Amendments to the Criminal Code of the Russian Federation and certain legislative acts Russian Federation"). Since this the new kind exemption from criminal liability, among specialists actively discussing questions about its nature, essence and content, place in the system of norms on exemption from criminal liability and in general in the Criminal Code of the Russian Federation, legislative formulation technique, etc.

The article consists of two parts, the first prescribes the release from criminal liability of persons guilty of tax evasion and failure to fulfill the duties of a tax agent, but subject to full compensation for the harm caused by this act budget system RF (Art. 198-199¹ of the Criminal Code of the RF).

The second part applies to a wide range of criminal acts (part 1 of Art. 171, part 1 of Art. 171¹, part 1 of Art. 172 of the Criminal Code of the Russian Federation), but the conditions for release under it are much more complicated - it is necessary to compensate for the harm caused by the crime to the victim (citizen , organization or state) and transfer five times the amount of such damage to the state budget. If, as a result of the crime, income was received (no damage was caused, and the perpetrator illegally received income), the norm requires the amount of income to be transferred to federal budget and another fivefold amount.

Since this article only lists special types exemption from criminal liability, its consolidation in the General part of the Criminal Code of the Russian Federation shows a certain inconsistency of the legislator. In this regard, experts propose to change the location of this norm by placing it in Ch. 22 of the Criminal Code of the Russian Federation. Some authors also substantiate the need to soften the conditions of release provided for in Part 2 of Art. 761 of the Criminal Code of the Russian Federation, noting the inequality of the position of persons applying for release on special grounds provided for by articles of the Special Part and the norm of Art. 761 of the Criminal Code of the Russian Federation.

If earlier we pointed to a certain preventive potential of the norms of the institution of exemption from criminal liability, then in Part 1 of Art. 761, it is not implemented, - without receiving additional financial losses in return, having the opportunity to free themselves from criminal liability by paying only the amount of unpaid payments (taxes, fees), the person will be ready to pay them if this act is discovered.

2. Grounds and conditions for release from criminal liability.

The totality of the considered conditions for release from criminal liability forms the basis for release. The objective basis for exemption under this article is the fulfillment of the requirements specified in the disposition of Art. 761 of the Criminal Code of the Russian Federation - reimbursement to the guilty of hidden amounts of taxes or other payments, or in other cases received illegal income, transfer of a fivefold amount of damage caused or income received, as well as the absence real damage... In such a situation, it is inappropriate to apply criminal law (i.e., repressive) measures to a person and subject him to punishment.

The subjective basis for exemption is revealed in the fact that the released person in this case does not demonstrate stable antisocial attitudes, will return to his usual sphere of activity, in which the issues of compliance with or violation of legal regulations (payment of taxes, other payments) also depend on their correct regulation and thoughtfulness. , as well as subjective personality traits, which also demonstrates the inexpediency of applying criminal law measures and punishment to him.

Release from criminal liability in connection with the expiration of the statute of limitations

The basis for exemption from criminal liability for limitation is the correction of the person, the disappearance of his public danger. Considerations of a criminal procedural and socio-psychological nature are also important in this case; the preventive effect of criminal prosecution and application of punishment is much higher when these acts are adopted immediately after the commission of a crime, when the victim and society expect the satisfaction of social justice. In addition, after a long time from the day the crime was committed, evidence is usually lost, witnesses forget about the essential details of the offense and thus it becomes difficult to establish the truth in the case, the likelihood of an investigative and judicial error increases.

2. The statute of limitations. In Art. 78 of the Criminal Code of the Russian Federation set the following limitation periods:

• two years after the crime slight severity;
• six years after the commission of a crime of average gravity;
• ten years after the commission of a serious crime;
• fifteen years after the commission of a particularly serious crime.

In the Criminal Code of the RSFSR in 1960, the statute of limitations was provided for one, three, five and ten years (part 1 of article 48).

Part 2 of Art. 78 of the Criminal Code of the Russian Federation established that the limitation period is calculated from the date of the crime and until the entry into force of the sentence. Usually, determining the day the crime was committed is straightforward. The initial moment of the limitation period should be considered the day when the act was committed (part 2 of article 9 of the Criminal Code of the Russian Federation).

In accordance with the clarification of the Plenum of the Supreme Court of the USSR of March 4, 1929 "On the conditions for the application of limitation and amnesty to continuing and continuing crimes" - from the moment of committing the last criminal act from among the constituents of an ongoing crime. In the case of commission of crimes consisting of two actions, the limitation period is calculated from the date of the last criminal action.

The course of the limitation period after its suspension is resumed from the moment of the arrest of the escaped criminal or his surrender. If the limitation period is suspended, the time that has elapsed before the person evades the investigation or the court is not canceled, but shall be set off in the general limitation period.

In accordance with Part 3 of Art. 78 of the Criminal Code of the Russian Federation, a person who has evaded an investigation or a court is subject to criminal liability, regardless of the length of time of the evasion. When calculating the limitation period, the time elapsed before the evasion and after the arrest of the guilty person or his surrender is taken into account.

4. Application of statute of limitations to a person who has committed a crime punishable by death. The question of applying the statute of limitations to a person who has committed a crime punishable by death or life imprisonment is decided by the court (part 4 of article 78 of the Criminal Code of the Russian Federation).

In this case, the court must take into account the entire set of circumstances characterizing the crime, personality and behavior of the person after the commission of the crime. For a positive solution to the issue, an internal conviction of the composition of the court about the loss by the person who committed a special serious crime, public danger.

If the court does not consider it possible to release the specified person from criminal liability due to the expiration of the statute of limitations, then the death penalty and life imprisonment do not apply. Maximum term imprisonment in this case cannot exceed 20 years, and for the aggregate of crimes and sentences - respectively 30 and 35 years (Art. 56 of the Criminal Code of the Russian Federation).

The analyzed provision of the law does not apply to cases of replacing the death penalty with life imprisonment or imprisonment for a term of 25 years (part 3 of article 59 of the Criminal Code of the Russian Federation).

In accordance with Part 5 of Art. 78 of the Criminal Code of the Russian Federation to persons who have committed crimes under Art. 205, 205.1, 205.3, 205.4, 205.5, parts 3 and 4 of Art. 206, part 4 of Art. 211, art. 353, 356, 357, 358 of the Criminal Code of the Russian Federation, as well as those who have committed crimes associated with terrorist activities under Art. 277, 278, 279 and 360 of the Criminal Code of the Russian Federation, the statute of limitations does not apply.

Termination of the initiated criminal case on the grounds provided for by Art. 78 of the Criminal Code of the Russian Federation, is not allowed if the accused objects to this (part 2 of article 27 of the Code of Criminal Procedure of the Russian Federation). The proceedings in this case shall continue as usual. If it ends with a conviction, the court, taking into account the expiration of the statute of limitations, must release the perpetrator from punishment.

The issue is also resolved in cases where the expiration of the statute of limitations is discovered in the course of the trial in a criminal case.

So, prescription in Russian criminal law is the expiration of the terms established in the law, after which the person who committed the crime is subject to release from criminal liability.

To be released on this basis, it is also necessary that the person does not evade the investigation and the court. The presence of these conditions testifies to the disappearance of the public danger of the person and serves as the basis for his release in accordance with Art. 78 of the Criminal Code of the Russian Federation. The law provides for the suspension of the statute of limitations in case of evasion of the perpetrator of a crime from the investigation or trial. If any new crime is committed, the statute of limitations for each crime shall be calculated independently.

Exemption from criminal liability under amnesty

1. Criminal law content of the amnesty act. Amnesty is an act of representative and legislative body Russian Federation.

This provision is also fixed in Part 1 of Art. 84 of the Criminal Code of the Russian Federation.

In accordance with Part 2 of Art. 84 of the Criminal Code of the Russian Federation, by an act of amnesty, persons who have committed crimes may be exempted from criminal liability.

Amnesty is an act normative and applies to persons who have committed certain categories of crimes or sentenced to certain types and terms of punishment.

Often, the acts under consideration also contain an indication of certain signs that characterize the personality of the perpetrator (gender, age, disability, etc.). But in any case, the persons to whom the amnesty applies are not individually determined. Therefore, the issuance of an act of amnesty presupposes subsequent law enforcement activities: the issuance of a resolution to refuse to initiate a criminal case or to terminate it, etc. These are the features of amnesty that differs from pardon.

The act of pardon refers to an individually defined person (or persons) and in itself serves as a formal basis for release only from punishment.

The amnesty applies to criminal acts committed before its announcement. With regard to continuing crimes, the resolution of the Plenum of the Supreme Court of the USSR dated March 4, 1929 "On the conditions for the application of limitation and amnesty to continuing and continuing crimes" explains that "the amnesty applies to those continuing crimes that ended before its publication." It does not apply to such crimes that continue after the issuance of the amnesty (paragraph 4). Clause 5 of this Resolution states that the amnesty does not apply if at least one of the criminal acts constituting a criminal act was committed after the issuance of the amnesty.

It should be borne in mind that under the amnesty, persons who have committed a crime can be exempted from both criminal liability and punishment, as well as other legal encumbrances.

The amnesty serves as the basis for exemption from criminal liability in cases where the persons who committed crimes falling under its effect have not been brought to criminal liability and at the same time the statute of limitations for criminal prosecution has not expired. The amnesty applies to all crimes (of course, of the corresponding categories), in respect of which no criminal proceedings have been initiated, and to those criminal acts, the cases of which were in the proceedings of the body of inquiry or investigation.

If during preliminary hearing it turns out that the amnesty applies to the crime in question, then the judge must issue a resolution to terminate the criminal case (part 1 of article 239 of the Criminal Procedure Code of the Russian Federation).

Amnesty is a kind of forgiveness by the state of the person who committed a crime. Therefore, if a person, for any reason, objects to the application of the act of amnesty to him, the criminal proceedings should be continued in the usual manner (part 2 of article 27 of the Code of Criminal Procedure of the Russian Federation).

In the event of a conviction, the court is nevertheless obliged to apply the act of amnesty and release the convicted person from punishment. In such cases, the person is considered criminally liable, but released from punishment.

2. Amnesty in the criminal policy of post-Soviet Russia. Acts of amnesty are issued, as a rule, to commemorate certain social and political events and anniversaries, as well as in connection with humanitarian events held under the auspices of the UN, for example, in connection with the International Year of the Child (1979); in connection with the 40th anniversary of the Victory of the Soviet people in the Great Patriotic War of 1941-1945. (1985); in connection with the 50th anniversary of the Victory in the Great Patriotic War of 1941-1945. (1995).

Acts of amnesty contain instructions on the release of persons from criminal liability, as well as release from punishment or on reducing its size and removing a criminal record.

In the history of our state, there have been amnesties for a limited number of people. So, in 1989, an amnesty was announced to servicemen who committed crimes while serving in Afghanistan, and in 1991 - to persons who evaded draft for active military service and left military unit or place of service. If the first act of amnesty was due to the illegal, immoral nature of armed intervention in the internal affairs of the Republic of Afghanistan, the second was due to the “bullying” spread in the army and the different approach in the former Soviet republics to the construction of their armed forces.

Resolutions of February 23, 1994 No. 63-1, No. 64-1, No. 65-1 State Duma Federal Assembly The Russian Federation announced a general amnesty in connection with the adoption of the Constitution of the Russian Federation, as well as a political and economic amnesty. Women were released from criminal responsibility and punishment; men over 60; disabled people of I and II groups; persons convicted of reckless crimes for a period of up to five years inclusive and who have served at least 1/3 of the imposed sentence; male minors, first convicted of imprisonment for up to three years, inclusive, etc., and paragraph 8 indicates persons who were not subject to this act of amnesty.

In accordance with the political and economic amnesty, persons guilty of acts related to the events of August 19-21, 1991, May 1, 1993 and September 21 - October 4, 1993 were released from criminal liability. malfeasance were also exempted from criminal liability and punishment.

Repeatedly special amnesties were announced in 1997 and subsequent years in relation to persons who committed socially dangerous acts during the anti-terrorist operation in the North Caucasus, and persons who committed socially dangerous acts in connection with the armed conflict in the Chechen Republic, as well as persons who avoided military service... The adoption of these acts of amnesty was due to military-political and moral considerations, as well as the interests of preventing new crimes, which was specially emphasized in the resolution The State Duma Federal Assembly of the Russian Federation of June 6, 2003 "On the procedure for applying the resolution of the State Duma of the Federal Assembly" On the declaration of amnesty in connection with the adoption of the Constitution of the Chechen Republic ".

Amnesty is usually not applied to those guilty of especially dangerous recidivism, commission of especially grave crimes.

In the acts of amnesty, the decision on its application to specific categories persons were transferred to the discretion of the court.

Thus, amnesty, acting as a manifestation of humanism, is often used in practice. This type of exemption from criminal liability is currently regulated by the norms of criminal law (Article 84 of the Criminal Code of the Russian Federation). On the basis of an act of amnesty, a person who has committed a crime may be exempted from criminal liability, punishment, or from other legal encumbrances.

1.1 Concept of exemption from criminal liability

It should be noted that exemption from criminal liability is a decision of the authorized government body... In accordance with it, a person whose involvement in a committed crime is established and proven is exempted from negative criminal legal consequences. This means that the perpetrator did not manage to remain unrevealed and escape from justice. I. S. Samoshchenko and M. Kh. Farukshin note the following: “The inevitability of responsibility does not lie in the fact that for each offense there must necessarily be a legal sanction (the exception is legal restorative sanctions, but that no offense can go unnoticed or undisclosed, that every violation must be publicized, come into the field of vision of the state and society, be condemned by them ”1.

The existence of the institution of exemption from criminal liability does not contradict the principle of the inevitability of its occurrence. The application of the rules on exemption from liability contributes to the exposure of the perpetrators, the disclosure and investigation of a crime, and the identification of other criminal acts. In this case, the criminal behavior of the perpetrator receives an appropriate criminal-legal assessment in the procedural act on the termination of criminal compulsion 2.

The need for exemption from criminal liability is determined by the low degree of danger of the crime committed, the positive post-criminal activity of the perpetrator aimed at making amends for the harm caused, assistance in the disclosure and investigation of the crime, the identification of property obtained illegally, a significant change in the situation. All these circumstances indicate that in the current situation, in the presence of formal grounds for bringing to criminal liability, there are also all the conditions for release from it. Taking into account these factors, the actual application of punishment in this case loses its meaning. For this reason, the question of exemption from criminal liability may be raised here.

It should also be borne in mind that by their content, the norms providing for the possibility of exemption from criminal liability are largely incentive, prompting the subject of criminal activity to lawful behavior. So, in the case of active repentance (Art. 75 of the Criminal Code of the Russian Federation), reconciliation with the victim (Art. 76 of the Criminal Code of the Russian Federation), the culprit must compensate for the harm caused by the crime. Exemption from criminal liability in connection with the expiration of the statute of limitations (Art. 78 of the Criminal Code of the Russian Federation) presupposes the failure of the guilty to take actions aimed at evading the investigation or trial. V otherwise the limitation periods are suspended.

According to Egorov V.S. 1, exemption from criminal liability is the non-application of negative legal consequences to a person guilty of committing a socially dangerous act, provided for by law for its commission, due to the elimination or significant reduction of the public danger of the criminal act or the person who carried it out.

It should be borne in mind that exemption from criminal liability is possible only in cases where there are prerequisites for bringing a person to justice for the commission of a crime. In this case, the subject carries out a certain socially dangerous act, which contains all the signs of the corpus delicti provided for by the Special Part of the Criminal Law. This act is objectively socially dangerous and causes significant harm to public relations protected by law. For this reason, all actual and legal grounds to prosecute. However, if at the same time there are circumstances that indicate that the person or the crime committed by him has lost public danger, due to which the goals of criminal liability can be achieved without its application, then the perpetrator can be exempted from the implementation of measures of criminal coercion.

“Criminal policy proceeds from the premise that exemption from criminal liability presupposes the presence of all the necessary prerequisites specified in the law for bringing to criminal liability. If there are no grounds for criminal liability, then there can be no question of exemption from criminal liability ”1.

A necessary condition for the release of a person from criminal liability is the commission of an act containing all the signs of a specific corpus delicti. It is their combination that determines the existence of grounds for bringing the perpetrator to criminal responsibility. Accordingly, the absence of these signs excludes the very possibility of the onset of criminal liability and, as a result, release from it. “The absence of corpus delicti in the act of a person,” writes R. Salyakhov, “is not provided for as a special ground for exemption from criminal liability. Exemption from criminal liability is regulated by criminal, not procedural legislation ... A person in whose act there is no corpus delicti is not subject to criminal liability under any conditions ”2.

It should be noted that exemption from criminal liability cannot be equated with those cases when a person is not exposed to negative criminal consequences due to the absence of grounds for their application. These cases include cases when a person causes harm to social relations protected by criminal law, but the deed is not qualified as a criminal act. These circumstances take place in cases where one or more signs of corpus delicti are absent: commission of an act by a minor or insane, innocent infliction of harm, etc.

In addition, this should include the infliction of harm in the presence of circumstances precluding the criminality of the act: necessary defense, detention of the person who committed a crime, extreme necessity, insurmountable physical coercion, reasonable risk, execution of an order or order. In the presence of these circumstances, one or more signs of a crime are absent: public danger (necessary defense, detention of the person who committed the crime), wrongfulness (extreme necessity), guilt (overwhelming physical impact). By virtue of this, the deed cannot be recognized as a crime, and the person is not subject to criminal liability.

Circumstances precluding the criminality of the act, as is evident even from their name, determine the inaccessibility of the deed. In this regard, since the crime was not committed, there are no grounds for bringing a person to justice. Consequently, in this case, the person is generally not subject to liability, for which reason it cannot be exempted from its application.

A person who has formally committed a criminal act that is not actually a crime due to the absence of public danger may not be subject to criminal liability either. So, according to Part 2 of Art. 14 of the Criminal Code of the Russian Federation, an action (inaction) is not a crime, although formally it contains signs of any action provided for by the Criminal Code, but due to its insignificance, it does not pose a public danger. The absence of a material sign of a crime - public danger - excludes the criminality of the act, due to which the person who committed it is not exempt from criminal liability, but is generally not subject to its application.

In accordance with Art. 31 of the Criminal Code of the Russian Federation, a person is not subject to criminal liability in the event of a voluntary refusal to commit a crime, that is, termination of preparation for a crime or termination of actions (inaction) directly aimed at committing a crime, if the person realized the possibility of bringing the crime to an end. In this case, the actual deed constitutes a preparation for the commission of a crime or an attempt on it. However, due to the fact that the person refused to complete the crime and independently prevented the onset of socially dangerous consequences, the act cannot be recognized as criminal. For this reason, this subject is not subject to criminal liability. 1

Voluntary refusal to bring a crime to an end excludes the presence of signs of a completed corpus delicti. Due to this, there are no grounds for bringing a person to criminal responsibility.

You can not equate exemption from criminal liability with its early termination... If there are all grounds for the application of criminal liability, but its execution is impossible due to circumstances beyond the control of the justice authorities (death of the victim, his evasion from the implementation of criminal liability), it is temporarily suspended or terminated forever. In this case, liability is not applied due to the lack of real possibilities for its execution, if there are all legal and factual grounds for that.

The noted cases of termination of criminal liability are present when it is impossible to implement it for objective reasons. In contrast to this, exemption from criminal liability takes place in cases where its application is possible in the future, but at the same time it is inexpedient and ineffective due to a significant reduction in the danger of the perpetrator or what he has done.

Depending on the grounds and conditions of application, the criminal law identifies the following types of exemption from criminal liability: in connection with active repentance, a person who first committed a crime of small or medium gravity may be released from criminal liability if, after committing a crime, he voluntarily confessed, contributed to the disclosure crimes, compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime, and as a result of active repentance ceased to be socially dangerous (part 1 of article 75 of the Criminal Code of the Russian Federation); exemption from criminal liability in connection with active repentance only in other cases, specifically provided for in Articles The special part of the Criminal Code (part 2 of Art. 75 of the Criminal Code of the Russian Federation); exemption from criminal liability in connection with reconciliation with the victim (Art. 76 of the Criminal Code of the Russian Federation); exemption from criminal liability due to the expiration of the statute of limitations (Art. 78 of the Criminal Code of the Russian Federation); release from criminal liability in connection with the adoption of an act of amnesty (Art. 84 of the Criminal Code of the Russian Federation); release from criminal liability of a minor with the use of coercive measures educational impact (Art. 90 of the Criminal Code of the Russian Federation).

The named types of exemption from criminal liability are subdivided into discretionary and imperative. By discretionary types of exemption from criminal liability, it is customary to understand those of them, the possibility of using which is determined by the law enforcement agency competent to make the appropriate decision. These include: exemption from criminal liability in connection with active repentance (part 1 of article 75 of the Criminal Code of the Russian Federation); exemption from criminal liability in connection with reconciliation with the victim (Art. 76 of the Criminal Code of the Russian Federation); exemption from criminal liability in connection with the expiration of the statute of limitations in the commission of a crime for which punishment is provided in the form of life imprisonment or the death penalty (part 4 of article 78 of the Criminal Code of the Russian Federation); release from criminal liability of a minor with the use of compulsory measures of educational influence (Art. 90 of the Criminal Code of the Russian Federation).

The imperative types of exemption from criminal liability include: cases of active repentance when committing other crimes, specifically provided for by articles of the Special Part of the Criminal Code (part 2 of Art. 76 of the Criminal Code of the Russian Federation); exemption from criminal liability due to the expiration of the statute of limitations (Art. 78 of the Criminal Code of the Russian Federation); exemption from criminal liability in connection with the adoption of an act of amnesty (Art. 84 of the Criminal Code of the Russian Federation). These types of exemption do not depend on the will of the official authorized to make the appropriate decision. They are applied in mandatory subject to the conditions stipulated by law.

An exception to this are cases of committing crimes punishable by life imprisonment or the death penalty, when the issue of exemption from criminal liability is decided by a court.

The mandatory procedure for exemption from criminal liability in cases provided for by articles of the Special part of the criminal law (part 2 of article 75 of the Criminal Code of the Russian Federation) is due to the needs law enforcement practice to suppress certain types crimes. The commission of a number of criminal acts causes significant harm to public relations protected by law. But under certain conditions, it is possible to prevent further damage. So, during the seizure of a hostage (Art.206 of the Criminal Code of the Russian Federation) suffers public safety and personal freedom of a person. However, if the perpetrator releases the victim, further harm ceases. In this regard, the law gives incentives to a person who commits specified crime, for the performance of a socially useful action, namely the release of the victim. In the event of the implementation of the required actions, according to the note to Art. 206 of the Criminal Code of the Russian Federation, it is exempted from criminal liability, unless the act contains a different corpus delicti.

In this case, the specifics of the situation presupposes that the perpetrator has a firm belief that the fulfillment of the requirements established by law will inevitably entail release from responsibility for the indicated crime. The doubts that have arisen about this circumstance are unlikely to contribute to the release of the hostage. For this reason, the law provides for a mandatory procedure for releasing the perpetrator from criminal liability in this case 1.

The application of amnesty (Article 84 of the Criminal Code of the Russian Federation) is a vivid example of the humanism of Russian criminal law, when corresponding act the person is exempted from criminal liability or punishment. Accepted specified acts supreme body legislative power - the State Duma of the Russian Federation. Any legal decision the named body is obligatory for all subjects of law enforcement activity and must be executed regardless of their wishes. The noted circumstances determine the imperative nature of the application of the considered type of exemption from criminal liability.

First of all, it should be noted that, by its nature, the content of criminal liability differs from the content of criminal punishment. The implementation of criminal liability begins at the stage preliminary investigation, includes the execution of a criminal penalty and ends with the cancellation or removal of a criminal record. By virtue of this, release from criminal liability is possible at an earlier stage of the proceedings and - at the stage of preliminary investigation, while release from punishment is carried out after a conviction by the court. The court, the prosecutor, the investigator and the interrogating officer have the right to make a decision on release from criminal liability, while only the court has the power to release from criminal liability.

There are also differences in the legal consequences that the application of the institutions in question entails. Exemption from criminal liability, except for the cases provided for in Art. 90 of the Criminal Code of the Russian Federation, is unconditional and excludes the possibility of further application of the measures specified in the law negative impact... Exemption from punishment, on the contrary, in most cases is considered conditional and allows for the possibility of implementing measures of criminal law coercion against the convicted person.

1.2 Purposes of exemption from criminal liability

Determining the goals and principles underlying the institution of exemption from criminal liability will optimize the procedure for its application, while increasing the efficiency of implementation. legal regulations, providing for the grounds and conditions for the release from criminal liability of the person who committed the crime.

The principle of economy of criminal repression, which is the basis of the institution of exemption from criminal liability, presupposes a careful weighing of all possible consequences of the application of criminal-legal measures and orientation towards the choice, but the possibility, of less stringent measures of influence. It is no coincidence, in this regard, that it is consolidated in Part 1 of Art. 60 of the Criminal Code of the Russian Federation, the rules for assigning punishment, according to which a more severe type of punishment from among those provided for a crime is imposed only if a less severe type of punishment cannot ensure the achievement of the goals specified in the law. 1

The focus on the economy of criminal repression can also be traced in a number of other criminal legal institutions, in particular, the possibility of applying a conditional sentence, the imposition of a softer punishment than is provided for a crime in the article of the Special Part of the Criminal Law, the rules for imposing punishment for an unfinished crime, as well as the presence of extenuating circumstances provided for by none. "And", "k" Art. 61 of the Criminal Code of the Russian Federation, etc.

The need for this is determined, in our opinion, by two circumstances: the direct manifestation of the principle of humanism, as well as considerations of expediency or, in other words, the social conditionality of the norms of criminal law. The principle of humanism presupposes respect for the rights and interests of a person who has committed a crime, who, despite this circumstance, remains a full-fledged member of our society. In this regard, criminal prosecution should be carried out only in cases where the goals set for it cannot be achieved in other ways. “The problem is,” writes Marc Ansel, “to master all the means by which the fight against crime can be effectively organized, keeping in mind a correctly understood social interest and not neglecting the interests of the individual” 1.

The considerations of expediency underlying the principle of economy of repression are conditioned by the needs of the most effective impact on the offender. “The practice of applying criminal penalties shows that deviations from the principle of humanism, in particular the appointment of excessively harsh measures, are fraught with serious negative social impact... By inflicting unnecessary suffering on the convict and his loved ones, such punishment turns the offender into a victim in the eyes of the public, causing him to feel compassion instead of condemning his criminal behavior. Thus, an excessively harsh punishment prevents the formation of correct ... legal consciousness, the achievement of the goals of general prevention ”2.

At the same time, adherence to the principle of economy of measures of criminal law does not mean the obligatory application of excessively lenient punishment to the perpetrator in all cases, or not fully justified release from criminal liability. The principle under consideration only presupposes the need to strive for the possibility of applying the minimum severe measure of influence, despite the fact that it will be sufficiently effective to achieve the goals facing criminal punishment.

The institution of exemption from criminal liability serves, first of all, to increase the effectiveness of the means of criminal-legal protection of public relations. Mechanism efficiency legal regulation depends not so much on the severity of the measures included in it, but on the ability to exert a comprehensive impact on the culprit, especially the one who has committed a criminal act for the first time. All this determines the greater expediency of releasing a person from criminal liability in certain cases in comparison with the application of criminal punishment to him, if at the same time there is reason to believe that the goals facing him can be achieved in a different way.

It should also be noted that in the event of the disappearance of the public danger of the culprit, the application of criminal liability to him becomes not only inappropriate, but also meaningless, since in this case the goals facing her have actually been achieved. In this case, the implementation of criminal liability from a just and justified measure of coercion actually turns into a reprisal against a person in whose personality positive changes have already occurred, expressed in the reorientation of negative views and attitudes to socially positive or neutral ones.

The possibility of exemption from criminal liability provided by law stimulates a person to lawful behavior, in particular, to terminate criminal activity, to confess, assist in the investigation of a crime, and compensate for the harm caused by the crime. It is no coincidence that at a theoretical seminar on urgent problems of criminal law, it was noted that the introduction of new incentive norms into the criminal law on the release from liability of a person who voluntarily released a kidnapped or hostage would help save the lives of victims 1.

Protection of a socially significant interest is the main task of the entire system of domestic criminal law. This circumstance determines the priority of the means of criminal law enforcement aimed at preventing or suppressing crimes. The presence in the criminal law of legal norms encouraging the perpetrator to refuse to continue the criminal activity, prompts the termination of the continuation, which contributes to the suppression of the crime being committed and, ultimately, the achievement of more high goal- protection of the most significant relations and interests for society. “The legislator,” writes I. N. Tikhonenko, “recognizes socially approved behavior as a basis for exemption from legal responsibility in order to encourage the offender to change his behavior, to correct or, in extreme cases, to refuse to commit new, often latent crimes "1.

One of the goals facing the institution of exemption from criminal liability is to optimize the law enforcement process of bringing a person to criminal liability and its direct implementation. “Exemption from criminal liability is a necessary (or permissible) evil in criminal policy, without which the criminal justice machine will seriously stall, or even get into a puddle. Therefore, thanks to this evil, the criminal process effectively allocates insufficient resources of criminal justice so that the system can handle a larger volume of criminal cases, given that modern criminal procedure (especially judicial proceedings) is too complex and takes a lot of time and resources ”2.

From an economic point of view, the existence of the institution of exemption from criminal liability also seems to be justified, since both the preliminary investigation and the stage judicial review cases require significant financial costs, in many cases much greater than the harm directly caused by the crime itself. In this regard, exemption from criminal liability allows one to reduce the costs of investigation and consideration of the case in court, which is of great importance in the context of an unstable economic situation in the country.

1.3 Delimitation of exemption from criminal liability from criminal immunity

Exemption from criminal liability has some differences from criminal immunity. In scientific works devoted to the topic under consideration, sometimes there are points of view, the authors of which fully identify these criminal law institutions. With such a thought comes out, in particular, G.B. Wittenberg, who considers diplomatic immunity type of exemption from criminal liability 1. A similar opinion is shared by A. Kibalnik, who considers immunity as a non-rehabilitating basis for exemption from criminal liability 2.

With this approach completely Egorov V.S. 3 does not agree due to the fact that in many cases immunity should be considered not as a basis for exemption from criminal liability, but as a set of restrictions provided by law in relation to the prosecution of certain categories of persons. Thus, if a crime is committed by a person enjoying diplomatic immunity, he is not exempt from criminal liability. Here, the decision on the responsibility of the perpetrator is left to the discretion of the state he represents. But there is no exemption from liability in this case, and the subject enjoying immunity does not avoid due retribution.

“A person who has the right to diplomatic immunity enjoys it from the moment he enters the territory of the receiving state, regardless of whether his status is formalized here. The immunity ceases after it leaves the country ”4.

A. Kibalnik, among others, distinguishes private criminal immunity (for example, witness immunity, enshrined in Article 308 of the Criminal Code of the Russian Federation), which, in his opinion, is also the basis for exemption from criminal liability 1. This, according to V.S. Egorov. 2 directly contradicts the requirement of the law. In the footnote to Art. 308 of the Criminal Code of the Russian Federation states that a person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives. As follows from the above provision, there is no question of exemption from criminal liability in this case. The law directly states that the marked persons are not subject to negative measures of a criminal-legal nature, since they are not subjects of the crime under Art. 308 of the Criminal Code of the Russian Federation. Given this, this case should not be viewed through the prism of an exemption from criminal liability.

A somewhat different situation takes place in the case of a crime committed by a deputy of the State Duma of the Russian Federation or by the President of the Russian Federation. Here, the presence of immunity does not automatically mean the release of these persons from criminal liability. So, in accordance with the federal law "On guarantees to the President of the Russian Federation who has terminated the exercise of his powers, and members of his family" 3 dated February 12, 2001, in the event that the President of the Russian Federation commits a grave crime, the Federation Council of the Russian Federation, with the approval of the State Duma of the Russian Federation, may decide on depriving him of his immunity. In this case, the President of the Russian Federation is subject to criminal liability on a general basis. However, if the State Duma of the Russian Federation or the Federation Council of the Russian Federation decides to refuse to give consent to deprive the President of the Russian Federation of immunity, this actually means his release from criminal liability. At the same time, the noted case was not reflected in the criminal law. Moreover, according to the principle of legality established by Art. 3 of the Criminal Code of the Russian Federation, the criminality of the act, as well as its punishability and other criminal-legal consequences are determined only by the Criminal Code. For this reason, the conditions and procedure for exemption from criminal liability can only be regulated by the norms of criminal law. However, the considered type of exemption from criminal liability is regulated not by criminal, but by another federal law, which is contrary to Art. 3 of the Criminal Code of the Russian Federation. This gap requires an early resolution, due to which the Criminal Code should, in our opinion, be supplemented by a rule providing for the grounds for exemption from criminal liability of the President of the Russian Federation, deputies of the State Duma of the Russian Federation and other persons enjoying immunity.

At the end of the chapter, the following conclusions should be drawn. In the institution of exemption from criminal liability, the manifestation of a material definition of the concept of a crime, the principles of justice, humanism, differentiation and individualization of responsibility, etc. is fixed. , and sometimes a grave crime, if it does not pose a great public danger in a particular case, is freed from the burden of criminal liability, if there are grounds specified in the law. The release of a person from criminal liability does not change the legal nature of the deed, and the deed committed by the person remains a crime and such persons are not rehabilitated. In this case, social justice is restored by exposing a person of a crime. The use of exemption from criminal liability and other alternative measures is due to the known limited social possibilities of criminal punishment and the negative consequences associated with its application.

2 TYPES OF EXEMPTIONS FROM CRIMINAL LIABILITY

2.1 Classification of types of exemption from criminal liability in Russian law

Material grounds and procedural order exemptions from criminal liability are clearly regulated by criminal and criminal procedure laws and have an appropriate procedure. The grounds and conditions for exemption from criminal liability are enshrined in the Criminal Code, which is a manifestation of what is declared in Art. 3 of the Criminal Code of the Russian Federation, the principle of legality, according to which the criminality of an act, as well as its punishability and other criminal-legal consequences, are determined only by criminal law.

The effectiveness of the institution of exemption from criminal liability directly depends on the correct understanding of the grounds for its application provided by law. Unreasonable exemption from criminal liability makes it impossible to achieve the goal of restoring social justice, undermines citizens' sense of respect for the law. In the event that a person is released from criminal liability, but the relevant prerequisites are absent or insufficient, he may develop a sense of permissiveness, confidence in his own impunity. On the other hand, the non-application of exemption from criminal liability in the presence of the grounds provided for by law reduces the effectiveness of this institution of law, hindering the achievement of its goals.

The theory of criminal law 1 formulates the general concept of exemption from criminal liability and the grounds for its application.

First, the need to apply one or another type of exemption from criminal liability arises only when a specific person has committed a crime. In this case, on the one hand, there is a formal basis for bringing this person to criminal responsibility, and on the other, there are grounds that allow him to be exempted from this responsibility.

Exemption from criminal liability by its legal nature differs from the so-called rehabilitation, i.e. non-prosecution of a person who is not guilty of a crime. So, in accordance with Part 2 of Art. 14 of the Criminal Code is not a crime an action (inaction), although formally it contains signs of any action provided for by the Criminal Code, but due to its insignificance does not pose a public danger. Therefore, in this case, it may not be about release, but about non-prosecution. For the same reasons, it is necessary to distinguish between exemption from criminal liability from the institutions of voluntary refusal (Article 31 of the Criminal Code), necessary defense (Article 37 of the Criminal Code), urgent need(Art. 39 of the Criminal Code), causing harm during the arrest of a person who committed a crime (Art. 38 of the Criminal Code), under physical or mental coercion (Art. 40 of the Criminal Code), at reasonable risk (Art. 41 of the Criminal Code), as well as in pursuance of an order or orders (part 1 of Art. 42 of the Criminal Code), In all these cases, the person is considered not to have committed a crime, therefore, the question of release cannot arise here. You can only release the one who has committed a criminal act.

Secondly, exemption from criminal liability in all its forms is possible if there are objective and subjective grounds. As a general rule, exemption from criminal liability can be applied to persons who have committed crimes for the first time, of minor or moderate severity (Articles 75, 76, 90 of the Criminal Code). As for the exemption from criminal liability in connection with the expiration of the statute of limitations and under the act of amnesty, it can also be applied to persons guilty of grave and even especially grave crimes, since in view of the correction of the guilty person within the time period established by law (Article 78 of the Criminal Code) it becomes inappropriate from the point of view of the tasks of criminal legislation to bring him to criminal responsibility.

Exemption from criminal liability under the amnesty act is also not strictly conditioned by a specific category of crimes.

The subjective reason lies in the fact that the person who committed the crime ceases to be socially dangerous or the degree of his public danger is reduced to such a level at which it becomes necessary to exempt from criminal liability. When characterizing the subjective grounds, the legislator points to circumstances that depend on the will of the perpetrator (active repentance, reconciliation with the victim, the first crime committed, failure to commit a new crime during the statute of limitations), as well as circumstances that do not depend on his will (expiration of the statute of limitations) 1 .

Exemption from criminal liability in all its forms excludes not only the imposition of punishment, but also the conviction of a person on behalf of the state, i.e. negative socio-legal assessment of both the person and the committed criminal act, given by the court in the conviction. Upon release from criminal liability, a conviction is not imposed, as is the case with release from criminal punishment, and the person in the legal sense is considered not to have committed a crime. At the same time, all measures of criminal procedural coercion (preventive measure, arrest of property) are subject to cancellation, if they were applied. The confiscated documents, things, etc. are returned to the person released from criminal liability.

The grounds for exemption from criminal liability should be understood as factual circumstances provided for by law, the presence of which makes it inappropriate to apply negative criminal consequences to the person who committed the crime.

According to G.K. Sukhorukova, this is “ legal fact or the factual (legal) composition, in the presence of which the person is completely or partially relieved of the obligation to undergo measures of state compulsory influence for the offense ”1.

The immediate grounds for exemption from criminal liability are the disappearance or a significant reduction in the public danger of the crime or the person who committed it.

The grounds for exemption from criminal liability are the disappearance or a significant reduction in the public danger of the guilty or committed criminal act, or the desire of the legislator to induce the guilty party to commit socially useful actions. However, together with the clarification of the content of the grounds for exemption from criminal liability, important aspect the topic under consideration is the study of the conditions for making such a decision.

Certain types of exemption from criminal liability presuppose the existence of formal conditions necessary for their application. So, in accordance with Art. 76 of the Criminal Code of the Russian Federation, which provides for the possibility of exemption from criminal liability in connection with reconciliation with the victim, it is necessary that the crime was committed for the first time, belonged to the category of minor severity, and that a mutual agreement was reached between the guilty any claims against the tortfeasor arising from the fact of the commission of a criminal act.

Exemption from criminal liability in connection with the expiration of the statute of limitations (Art. 78 of the Criminal Code of the Russian Federation) presupposes the application of this type of exemption from criminal liability after the following periods have elapsed: two years after the commission of a crime of little gravity; six years after the commission of a crime of average gravity; ten years after the commission of a serious crime and fifteen years after the commission of a particularly serious crime. At the same time, it is necessary that the guilty person during this time does not shy away from the investigation and trial. In this case, it is obvious that the danger of the guilty person or the crime committed by him may disappear earlier or later than the indicated time limits, but the law links the possibility of applying this type of exemption from criminal liability with a formally defined time period.

Exemption from criminal liability, with the exception of the grounds established by Art. 90 of the Criminal Code of the Russian Federation (release from the responsibility of a minor, with the use of compulsory measures of educational influence), is unconditional. By virtue of this, it is not in any way dependent on the subsequent behavior of a person released from criminal liability (committing a new crime or other offense in the future, an antisocial lifestyle, dismissal from work, etc.), as well as any other circumstances (changes in the criminal law, socio-political situation, etc.). Exemption from further criminal prosecution terminates all criminal law relations that have arisen between the perpetrator and the state.

At the same time, the use of any type of exemption from criminal liability does not exclude the involvement of other types of liability (civil, disciplinary, administrative, moral).

The institution of exemption from criminal liability acts as one of the alternative measures to criminal prosecution and punishment applied to persons who have committed a crime of small or medium gravity, and sometimes more serious crimes (Article 78 of the Criminal Code of the Russian Federation), if there are grounds specified in the law (active repentance, reconciliation with the victim, etc.) 1

Summarizing what has been said, it can be noted that the grounds for exemption from criminal liability for most of its types are the reduction or disappearance of the social danger of the crime or the person who committed it. In special cases of active repentance, the basis for exemption from liability is the commission by the guilty party of socially useful actions provided for by the Articles of the Special Part of the Criminal Code of the Russian Federation. In turn, the conditions for exemption from liability should be recognized as a set of circumstances, the presence of which indicates the existence of grounds for the application of the considered legal institution.

The criminal legislation of Russia provides for the following types of exemption from criminal liability for persons who have committed a crime:

in connection with active repentance (Article 75 of the Criminal Code);


in connection with the reconciliation of the perpetrator with the victim (Art. 76 of the Criminal Code);


in connection with the expiration of the statute of limitations (Article 78 of the Criminal Code);


in connection with the amnesty (Article 84 of the Criminal Code);


in relation to a minor (Article 90 of the Criminal Code).


Federal Law No. 162-FZ of December 08, 2008 "On Amendments and Additions to the Criminal Code of the Russian Federation" 1 excluded Art. 77, which regulated the release from criminal liability in connection with a change in the situation. Currently, if there are the same grounds, it is allowed to apply only exemption from punishment (Article 80.1 of the Criminal Code).


The current Criminal Code provides for unconditional and final types of exemption from criminal liability (for an exception, see part 4 of article 90 of the Criminal Code). Moreover, their use is not conditioned by the subsequent educational impact. A person released from criminal liability is left as if to himself, i.e. he is not required to fulfill any conditions, to participate in a particular educational process.


2.2 Exemption from criminal liability in connection with the active repentance of the perpetrator


Release in connection with active repentance fully meets the signs of the institution of exemption from criminal liability, since it is applied to a person guilty of a crime, and in the presence of a certain behavior on his part. In the current legislation, exemption from criminal liability in connection with active repentance, along with other types of release, is provided for in the General Part of the Criminal Code (Art. 75).


One of the criteria for the classification of types of exemption from criminal liability is the grounds for their application. The provisions of the criminal law governing the application of exemption from criminal liability in connection with active repentance, reconciliation with the victim and the act of amnesty (Articles 75, 76, 84 of the Criminal Code) indicate that a person who has committed a crime may be exempted from criminal liability. In other words, the legislator assigns the decision of this issue to the discretion of the body authorized by the law. Thus, he orients the law enforcement officer to establish the grounds for exemption from criminal liability in each specific case. If the grounds for release are established, then the body of inquiry, investigator, prosecutor or court must take a decision to release the person from criminal liability. Therefore, one cannot agree with the opinion that those specified in Art. 75,76,90 of the Criminal Code circumstances do not give rise to an obligation, but the right of the relevant authority to release the perpetrator from criminal liability 1.


The legal regulation of exemption from criminal liability in connection with active repentance is distinguished by a certain specificity. This type of exemption, unlike others, is regulated by the norms of not only the General, but also the Special part of the Criminal Code (Articles 204-206, etc.).


2.3 Release from criminal liability in connection with the reconciliation of the guilty person and the victim


According to Art. 76 of the Criminal Code of the Russian Federation a person who has committed a crime of little or medium gravity for the first time may be exempted from criminal liability if he has reconciled with the victim and made amends for the harm caused to the victim.


The procedural procedure for the application of this norm is established by Article 25 of the Criminal Procedure Code of the Russian Federation, according to which, the court, the prosecutor, as well as the investigator and the interrogating officer, with the consent of the prosecutor, have the right, on the basis of the application of the victim or his legal representative, to terminate the criminal case against the person suspected or accused of committing crimes of small or medium gravity, in the cases provided for by Article 76 of the Criminal Code of the Russian Federation, if this person has reconciled with the victim and made amends for the harm caused to him.


So, the criminal and criminal procedure codes of the Russian Federation speak of “making amends”. At the same time, the conditions for exemption from criminal liability are called: reconciliation of the victim with the person who is released from criminal liability, and making amends by the latter for the harm caused to the victim.


Consider ways to “make amends”. As A.Z. Vaksyan, “harm” and “debt” are civil concepts 1. Both harm and debt give rise to the liability of the person held accountable to the victim. According to Article 415 of the Civil Code of the Russian Federation, the obligation can be terminated by forgiving the debt, i.e. the release of the debtor from the obligations lying on him, if this does not violate the rights of other persons in relation to the property of the creditor (victim).


It can be concluded that the victim has the right not to demand compensation for harm, having documented his will - forgiveness of the debt to the inflictor of harm.


"Making amends for harm" as a condition for exemption from criminal liability under Article 76 of the Criminal Code of the Russian Federation is reduced to the fulfillment by a person of obligations as a result of causing harm (tort obligations) regulated by Chapter 59 of the Civil Code of the Russian Federation. As L. Golovko notes, "the civilistic nature of" smoothing out "the latter (harm) is so obvious that it does not require special argumentation" 1.


Considering that the victim may be inflicted with various types of harm (moral, physical and property damage), the methods of “smoothing out” each of these types of harm may also be different. Let's consider them in more detail.


In accordance with current legislation moral injury can be eliminated in two ways. Firstly, by means of actions of the person who “committed the crime” aimed at reconciliation with the victim. If such actions achieve the goal, the concept of "redressing harm" is absorbed by the concept of "reconciliation" Secondly, moral harm can be eliminated by compensating it in material (most often monetary) form, which gives rise to civil law relations between the parties associated with the corresponding obligation, taken on by the inflictor of harm.


Physical harm, as a rule, cannot be redressed in a non-property form. Mitigation of physical harm usually occurs in the form of compensation victim expenses for treatment, restoration of health, etc., which again makes it possible to judge the presence between the parties civil legal relationship related to the obligation to compensate for harm caused to health (Articles 1084 and 1085 of the Civil Code of the Russian Federation).


2.4 Exemption from criminal liability due to the expiration of the statute of limitations


According to Art. 78 of the Criminal Code of the Russian Federation, a person is released from criminal liability if the following terms have expired from the date of the crime:


a) two years after the commission of a crime of little gravity;


b) six years after the commission of a crime of average gravity;


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


d) fifteen years after the commission of an especially grave crime.








The question of applying the statute of limitations to a person who has committed a crime punishable by death or life imprisonment is decided by the court. If the court does not consider it possible to release the said person from criminal liability due to the expiration of the statute of limitations, then the death penalty and life imprisonment shall not apply.
a) war crimes;


b) crimes against humanity.


The limitation period is calculated from the day the crime was committed and until the entry into force of the court's verdict. In the event that a person commits a new crime, the statute of limitations for each crime shall be calculated independently.


The limitation period is suspended if the person who committed the crime evades the investigation or trial. In this case, the course of the limitation period is resumed from the moment the said person is detained or surrendered.


The question of applying the statute of limitations to a person who has committed a crime punishable by death or life imprisonment is decided by the court. If the court does not consider it possible to release the specified person from criminal liability due to the expiration of the statute of limitations, then the death penalty or life imprisonment shall not be applied.


Exemption from criminal liability due to the expiration of the statute of limitations is the most common ground for cancellation judgments, entailing the termination of the proceedings.


2.5 Exemption from criminal liability in connection with the act of amnesty


Part 2 of Art. 84 of the Criminal Code regulating the application of amnesty, the same wording is used: "By the act of amnesty, persons who have committed crimes may be exempted from criminal liability." This norm, following the Constitution of the Russian Federation (clause "e" of Art. 103), secures the right of the representative body of the Russian Federation to declare amnesty, and at the same time it provides for the obligation of the body applying the act of amnesty to release a specific person from criminal liability. This conclusion is confirmed by the content of Part 1 of Art. 27 of the Code of Criminal Procedure, in which among the circumstances precluding criminal proceedings, an act of amnesty is indicated, which eliminates the application of punishment for the committed act.


Thus, on the basis of the application, the exemption from criminal liability under the amnesty and in connection with the expiration of the statute of limitations should be attributed to the group of types of exemption from criminal liability, the use of which is mandatory for the relevant authority. Part 1 of Art. 78 of the Criminal Code stipulates that a person is released from criminal liability if the statute of limitations has expired from the date of the crime. The imperative nature of this norm, as in the case of the application of the amnesty act, is due to the fact that for a positive solution to the issue of exemption from criminal liability, it is not required to establish any additional data, for example, characterizing the identity of the perpetrator, but it is enough to establish that the period provided for by law has expired. prescription or the adopted act of amnesty removes the punishment for the committed act.


Exemption from criminal liability in connection with the expiration of the statute of limitations and under the act of amnesty differs from other types also in that they can be applied to persons guilty not only of crimes of small or medium gravity, but also grave and even especially grave ones.


In the literature, the possibility of applying exemption from criminal liability is linked to the achievement of the goals set for the punishment. The totality of the conditions provided for in the law, emphasizes A.V. Naumov 1, allows us to conclude that exemption from criminal liability is applied when there is no point in bringing a specific person to criminal responsibility, and the goals of punishment in these cases can be achieved without further implementation. In his opinion, even when exemption from criminal liability, to a certain extent, the implementation of such goals of punishment as the restoration of social justice and general prevention of crimes is ensured.


Most types of exemption from criminal liability are based on the so-called idea of ​​compromise, according to which a person guilty of a crime is guaranteed release from criminal liability or only mitigation of punishment in exchange for committing acts required by law. An acceptable compromise between the criminal and the state, between the criminal and the victim, can really increase the social significance of the criminal law 2.


It is important to note that not only special types of exemption from criminal liability in connection with the use of compulsory measures of educational influence are applied to minors, but also all types of exemption from criminal liability under consideration. In clause 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated February 14, 2000 No. 7 "On jurisprudence in cases of juvenile crimes "courts are recommended" to study more carefully the possibilities of applying the provisions of Art. 75-77 grounds for the release of minors from criminal liability ”3.


The use of any kind of exemption from criminal liability does not exclude bringing to other types of liability (civil, disciplinary, administrative, moral).


An analysis of the legislation and the practice of its application allows us to conclude that in cases of exemption from criminal liability, the issue of the guilt or innocence of persons who are charged with the relevant acts is not considered. His decision is, as it were, entrusted to these persons themselves. The norms of the Code of Criminal Procedure on the termination of a criminal case and criminal prosecution after the expiration of the statute of limitations for criminal prosecution, as a result of an act of amnesty, in connection with active repentance, reconciliation of the parties and the use of compulsory educational measures against a minor, as it were, impose the resolution of this issue on the person who is released from criminal responsibility. The termination of the criminal case on the above grounds is not allowed if the person objects to this (clause 3 of part 1 of article 24, article 25, clause 3 of part 1 of article 27, part 2 of article 27, article 28 of the Code of Criminal Procedure) ). It is the responsibility of the relevant authorities to explain to a person his right to object to the termination of the case on the grounds under consideration.


The institution of exemption from criminal liability acts as one of the alternative measures to criminal prosecution and punishment applied to persons who have committed a crime of small or medium gravity, and sometimes more serious crimes (Article 78 of the Criminal Code of the Russian Federation), if there are grounds specified in the law (active repentance, reconciliation with the victim, etc.)


Thus, the institution of exemption from criminal liability is manifested in its five varieties. All types of exemption from criminal liability are united by the fact that their application eliminates the state conviction of a person and the crime committed by him, the imposition of punishment and other legal consequences. Some provisions of the Criminal Code, providing for exemption from criminal liability, are imperative, others are dispositive, i.e. provide the relevant authority with the opportunity to positively resolve the issue, taking into account the circumstances characterizing the crime and the identity of the perpetrator.


LIST OF USED SOURCES

1. Convention on the inapplicability of the statute of limitations to war crimes and crimes against humanity of November 26, 1968 // Bulletin of the Supreme Soviet of the USSR. 1971 No. 2. Art. eighteen.
   

   The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (as amended, introduced by the Laws Of the Russian Federation on amendments to the Constitution of the Russian Federation dated 30.12.2008 No. 6-FKZ and dated 30.12.2008 No. 7-FKZ) // Russian newspaper... December 25, 1993
   

   Civil Code of the Russian Federation. Part 1 of November 30, 1994 (as amended by FZ of June 29, 2009 No. 132-FZ, of July 17, 2009 No. 145-FZ, as amended Federal laws dated July 24, 2008 No. 161-FZ, dated July 18, 2009 No. 181-FZ) // SZ RF. 1994. No. 32. Art. 3301.
   

   Civil Code of the Russian Federation. Part 2 of January 26, 1996 (as amended by the Federal Law dated 09.04.2009 No. 56-FZ, dated 17.07.2009 No. 145-FZ) // SZ RF. 1996. No. 5. Art. 410.
   

   The Criminal Code of the Russian Federation 1996 as amended by FZ dated July 29, 2009 No. 216-FZ // SZ RF. 1996. No. 25.
   

   Federal Law "On guarantees to the President of the Russian Federation, who has terminated the exercise of his powers, and members of his family" dated February 12, 2001 No. 12-FZ // SZ RF. 2001. Art. 617.
   

   Federal Law "On Amendments and Additions to the Criminal Code of the Russian Federation" December 08, 2008 No. 162-FZ // Rossiyskaya Gazeta. December 18, 2008
   

   On the judicial practice of conditionally early release of convicts from punishment and replacement of the unserved part of punishment with a softer one: Resolution of the Plenum of the Supreme Court of the USSR No. 9 dated 19.10.71 // Collection of resolutions of the Plenums Supreme Courts USSR and RSFSR (Russian Federation) in criminal cases. M., 2010.
   

   Kibalnik A. Immunity as a basis for exemption from criminal liability // Russian justice. 2009. No. 8.
   

   Kelina S.G., Kudryavtsev V.N.Principles of Russian criminal law M., 2005.
   

A proven fact of a criminal offense in combination with a confession of guilt by the defendant does not at all mean a conviction.

In addition to the option with the acquittal of the defendant, the scenario of the development of a criminal case can also develop along the path of release from responsibility.

Exemption from criminal liability does not mean that a person accused of a crime is declared innocent. It only allows a peaceful settlement of the conflict without applying a criminal penalty to the accused.

However, for such a solution to the problem, certain conditions must be met. Based on them, the bodies authorized to exempt from criminal liability choose one of the ways to complete the criminal case.

Consider in detail the concept and types of exemption from criminal liability.

Exemption from liability in criminal law is the completion of a criminal case at any stage from the moment of its initiation to the sentencing.

By order of release, a person who is being tried as a defendant is not recognized as a criminal, no punishment is applied to him, and he is considered not previously convicted.

Release from criminal liability is possible only with the consent of the defendant.

The grounds for exemption from criminal liability can be only if there are conditions common to all types of crimes:

• An act for which a criminal penalty is provided must be committed;
• There must be a complete corpus delicti;
• The defendant committed criminal offense first.

For the first time in this case, it means that his past convictions have been completely extinguished or none at all.

There is no definite answer to the question of which law enforcement agency is carrying out the release procedure. As long as the judge has not passed a verdict on the case, it can be completed in this way.

Release from liability can be issued at the following stages:

• At the stage of preliminary investigation - by the bodies of inquiry or investigation;
• At the stage of preparing the case for submission to the court - by the prosecutor's office;
• In the framework of the trial - by the judge alone or with the filing of a petition from the defendant or the victim.

Each of the represented employees is obliged to issue a proper order on exemption from criminal liability.

The ruling passed by the court comes into force in 10 days.

These concepts are absolutely not identical. Release from punishment is possible only after a verdict has been passed and a certain type of criminal liability has been chosen. Exemption from liability terminates criminal proceedings on the case and does not generate a criminal record.

To make it easier to understand the differences, you should familiarize yourself with the list of types of exemption from punishment.

So, it can take the following forms:

• Grant of parole;
• Liberation due to changes in the environment;
• Exemption due to illness;
• Upon expiration of the statute of limitations for the conviction;
• Release due to changes in criminal law;
• Amnesty or pardon while serving a sentence.

The methods, types or grounds for exemption from criminal liability are spelled out in the Criminal Code of the Russian Federation in Chapter 11. In order for them to be applicable, it is necessary to state the relatively low degree of danger of the deed.

The foundation must meet the following legal criteria:

• Describe the crime and the defendant at the time of the act;
• Be essential for the application of the exemption rate;
• Reflect the relationship between the rule of law and the basis for exemption from liability.

There are several types of exemptions from liability in criminal law for 2020:

Active repentance

Repentance is provided for by Art. 75 of the Criminal Code of the Russian Federation and involves the notification of law enforcement agencies about the crime by the criminal himself.

This method of release is possible only in relation to crimes of small and medium severity without recurrence.

In order to bring active repentance into action, certain criteria must be met:

Only in the presence of all the circumstances can the defendant be released from criminal liability.

Repentance is irreversible and unconditional. It is not possible to reverse this waiver.

On the basis of remorse, cases are terminated, as a rule, at the stage of investigation and preparation of criminal case materials.

Prescription presupposes the end of a time period from the moment the crime was committed, after which the accused person is released from criminal liability.

The legislator provides for the following limitation periods:

• For a crime of minor gravity - 2 years;
• For a crime of average gravity - 6 years;
• For a serious crime - 10 years;
• For the most difficult - 15 years.

In the event that new crimes are committed by the defendants, the statute of limitations shall be calculated independently for each of them.

For long-term crimes or crimes involving multiple episodes, the statute of limitations begins when the act actually ends. This can be the end of the last criminal episode or the moment of the arrest of the criminal.

If the defendant evades the investigation or trial, the limitation period is suspended. The term is renewed from the moment of surrender or detention of the offender.

For a number of crimes reflected in the Criminal Code of the Russian Federation, these limitation periods do not apply... In particular, this applies to acts associated with terrorist activities.

This is the most common way of exonerating responsibility. For the most part, it is used in the litigation process. Although such an initiative of reconciliation can also come from law enforcement agencies.

The parties can be reconciled provided:

• Minor or moderate crime;
• Both sides are ready for reconciliation;
• The defendant made amends for the harm caused to the injured party in full.

Each of the conditions should not only be initiated, but also be documented in the case file.

It is allowed to make amends for the harm with an apology, payment of monetary compensation, and the return of stolen property. Any method is acceptable if it satisfies the victim.

To be exempted from responsibility for the help of reconciliation, it is necessary to fill out a special application on the part of the defendant and the victim.

In practice, it happens this way. Before the trial, the judge will give you conciliation application forms to complete. After, in court session You will inform the petition for the reconciliation of the parties and attach these statements to the case file.

The judge will once again ask you under the protocol whether you really agree to reconciliation, and how the harm was compensated. If all the participants in the process agree with this outcome of the case, the judge will issue an order to terminate the criminal case.

Art. 76.2 of the Criminal Code of the Russian Federation allows exemption from liability by appointing to the defendant judicial fine... This method is applicable for crimes of small and medium gravity, committed for the first time.

In this case, the harm caused by the crime must be redressed or compensated in the form of compensation.

It is important that the public prosecutor gives his consent to the imposition of a court fine. According to the rules of criminal adversarial procedure, the initiative or request to use this article must come from the defendant's defense lawyer.

The amount of the fine is determined based on the severity of the act committed. For minor offenses, a fine of 5,000 rubles is usually imposed.

The referee must make sure that financial condition the defendant allows him to pay the sanction.

If the fine is not paid within the time limit established by law, the criminal case will be reopened.

The receipt of the payment of the fine must be submitted to the court without fail. Payment details are indicated in the decision to terminate the criminal case.

The deadline for payment of the fine is 30 days from the date of entry into force of the resolution.

Juvenile offenders between the ages of 14 and 18 may also be exempted from liability. Due to their age, it is believed that their actions and misdeeds are based on the psychoemotional characteristics of the individual.

In order for a teenager to be released from criminal penalties, the consent of the investigators or the prosecutor's office is required. In this case, the crime must be committed for the first time.

The criminal liability of a teenager is replaced by measures of an educational nature or influence. The softest of them is a warning, the stricter one is transferring under parental supervision or registration in the PDN.

If the misconduct takes place on a regular basis, restrictions on his freedom may be imposed on the teenager, such as a ban on leaving the city and walking in the evening.

The presence of mental deviations in the health of the defendant may be the basis for releasing him from responsibility. In legal language, such a state is called insanity.

The mental health checks of offenders are always carried out in the framework of forensic psychiatric examinations.

If it is proved that a person committed an act in a state of insanity, the judge is obliged to take medical measures against him.

Such criminals are usually sent to special medical institutions where they receive treatment. If their crime does not pose a public danger, they can be released without treatment.

But at the same time, the relevant information is still sent to neuropsychiatric dispensaries.

Amnesty act

Amnesty is not condescension to certain types of crime. This is the forgiveness of those convicted of one group of persons.

Amnesty is reflected in special regulations, according to which persons convicted under specific articles are subject to release from liability or mitigation of punishment.

A pardon, unlike an amnesty, is always targeted.

Criminal liability under the amnesty act can be removed in whole or in part. At the same time, it is important that the defendant pleads guilty to the crime committed. Otherwise, the amnesty cannot be applied.

The last thing to focus on is Art. 76.1 of the Criminal Code of the Russian Federation. She prescribes the possibilities of exemption from liability in crimes of an economic nature.

For its application, the following conditions are required:

• The crime was committed for the first time;
• The crime concerns non-payment of taxes or insurance contributions to the budget;
• The damage caused to the state was compensated in full.

There are many such crimes, but most of them are resolved peacefully.... For this, the amount established by the parties is paid to the tax or insurance authorities.

In case of violation of other articles provided for by law, contained in paragraph 2 of Art. 76.1, the compensation for damage is established in a double amount to the state budget.

The initiation of a criminal case does not always mean a conviction. Criminal legislation allows you to settle crimes of any nature in a peaceful way.

This only requires the consent of the parties and the restoration of the conditions and circumstances that existed before the crime.

1. In the presence of circumstances directly provided for by the Criminal Code, a person may be completely exempted from criminal liability, despite the fact that he is guilty of committing a crime, i.e. if available in actions of this person corpus delicti as the only basis for criminal liability.

2. The legal nature of exemption from criminal liability. Exemption from criminal liability in its legal meaning means the release of the perpetrator from all the legal consequences of the crime committed by him: from the censure, which, on behalf of the state, is declared by the court's conviction and is expressed in official recognition a citizen is a criminal, from punishment and from a criminal record. It without fail also presupposes the abolition of all measures of criminal procedural coercion: measures of restraint, arrest of property. Seized things, objects, documents are subject to return to those released from criminal liability. At the same time, release from criminal liability does not mean the recognition of a person as innocent and does not release from civil, zB., Property, liability for the committed act, as well as from administrative, disciplinary action and public censure and does not put the state in relation to this citizen in the position of a debtor who is obliged to make amends for everything Negative consequences criminal prosecution.

3. Types of exemption from criminal liability. The grounds for exemption from criminal liability and, accordingly, the types of such exemption are divided into two groups.

The first group includes the expiration of the statute of limitations for criminal prosecution (Article 78) and amnesty (Part 2 of Article 84). In this case, the body of inquiry, the investigator, the prosecutor or the court in whose proceedings the criminal case is, shall be obliged to release the person from criminal liability. Such release can take place in relation to a person guilty of a crime of any category.

The second group includes exemption from criminal liability in connection with the active repentance of the perpetrator (Art. 75), in connection with the reconciliation of the perpetrator with the victim (Art. 76), in connection with a change in the situation (Art. 77) and in connection with the application to a minor compulsory measures of educational influence (Article 90). These circumstances give rise to the right of the bodies of inquiry, preliminary investigation, prosecutors and courts to release the guilty from criminal liability. Common a prerequisite Such release is that a person can be released from criminal liability only for the commission of a crime of little gravity, and in relation to release in connection with a change in the situation - a crime of small or medium gravity.

a) Exemption from criminal liability in connection with active repentance: voluntary confession, assistance in solving a crime, compensation, making amends (voluntary return in kind; financial compensation or recovery at your own expense).

b) Release from criminal liability in connection with the reconciliation of the accused with the victim (at the stage of preliminary investigation - by order of the prosecutor, as well as the investigator and the body of inquiry with the consent of the prosecutor, in court - by order of the judge).

c) Release from criminal liability due to a change in the situation (the disappearance of the public danger of the act - zB., forged food cards, and they were canceled - and the person, zB., after an accident was bedridden).

d) Release from criminal liability due to the expiration of the statute of limitations (2 years - a crime of minor gravity, 6 years - a crime of average gravity, 10 years - a grave crime, 15 years - an especially grave crime).

e) Exemption from criminal liability under amnesty (act of the GDFSRF).

The material grounds and the procedural procedure for exemption from criminal liability are clearly regulated by criminal and criminal procedural laws and have an appropriate procedure. The grounds and conditions for exemption from criminal liability are enshrined in the Criminal Code, which is a manifestation of what is declared in Art. 3 of the Criminal Code of the Russian Federation, the principle of legality, according to which the criminality of an act, as well as its punishability and other criminal-legal consequences, are determined only by criminal law.

The decision to release from criminal liability is expressed in an act of the authorized state body. These, in accordance with the Code of Criminal Procedure, are the court, the prosecutor's office, the bodies of investigation and inquiry (the latter - with the consent of the prosecutor). L. V. Golovko does not agree with this decision of the legislator, noting in this regard the following:

Cleverly, the state has the right (even is obliged) to punish criminals. But this right exists in the abstract, and the state itself, just as abstractly (apriori), can renounce it by introducing appropriate norms into criminal and criminal procedural legislation. In a specific case, the right to punish the person concerned on behalf of the state belongs to only one of its bodies - the court, and it does not arise at any time of the proceedings, but only when the court in the established procedural forms considers the case on the merits, i.e. as a result of the trial. Hence, those who do not have the right to condemn and punish on behalf of the state (prosecutor, investigator, body of inquiry), cannot refuse in his own name from the exercise of such (not belonging to them) right ”100.

This opinion seems to be very controversial, because its author, in fact, replaces one concept with another. Indeed, only a court has the right to find guilty and impose criminal punishment. At the same time, this does not mean that only this body is the subject of the application of measures of criminal responsibility. At the pre-trial stage, criminal measures may also be applied by the bodies of the prosecutor's office, investigation or inquiry. It should be borne in mind that they are elements of the state apparatus that represent public authority. Because of this, it is not entirely clear why the state, in their person, cannot refuse to prosecute the perpetrator, and at the same time it is imperative to bring the case to court. For this reason, despite the fact that only a court has the right to establish the fact of a person's guilt, as well as to choose the type and amount of punishment, other subjects - a prosecutor, an investigator or an inquiry body - can also decide the issue of exemption from criminal liability.

100L. V. Golovko Exemption from criminal liability and exemption from criminal prosecution: the correlation of concepts // State and Law. 2000. No. 6. S. 49-50.

The decision to release a person who has committed a crime from criminal liability must be justified and motivated, comply with the circumstances of the case and the conditions specified in the law. “The legislator,” writes N. V. Vasiliev, “did not accidentally determine the procedure for exemption from criminal liability on special grounds, and not refusal to initiate it: it is impossible to establish these grounds during a preliminary check ... Therefore, the termination of criminal cases is the most justified, guaranteeing the observance of the rights of a person, reliably establishing all the circumstances by a procedural institution for exemption from criminal liability "" 01.

According to the procedure established by the Criminal Procedure Code, release from criminal liability is permissible only after the initiation of a criminal case. An exception to this, in accordance with Art. 24 of the Code of Criminal Procedure of the Russian Federation, is exemption from criminal liability in connection with the expiration of the statute of limitations, when, upon establishing the specified circumstance, a criminal case cannot be initiated, and the initiated case must be terminated.

The establishment of such a procedure for the application of most types of exemption from criminal liability is due to the need for a detailed study of all the circumstances in the case, as a result of which the official has a reasonable conviction that the person is guilty of the crime incriminated to him. In addition, for the application of any type of exemption from criminal liability, it is necessary to establish the presence of the necessary conditions, in particular, a change in the situation, reconciliation with the victim, etc. This must also be confirmed by the collected materials, which in

101Vasiliev N.V. Procedural issues of termination of criminal cases on special grounds provided for by the Special Part of the Criminal Code of the Russian Federation // In collection. Problems of strengthening the rule of law and its impact on the effectiveness of the work of internal affairs bodies in modern conditions. M., 2000.S. 126.

in most cases, they are established during the investigation of the initiated criminal case.

For this reason, we cannot agree with the proposal of L. V. Golovko “to enshrine in the law the right of authorized bodies not only to terminate criminal cases, but also to refuse to initiate them, if there are grounds provided for by Art. 75 and 76 of the Criminal Code of the Russian Federation "102.

Exemption from criminal liability presupposes not only the establishment by law enforcement agencies of the fact of a crime, but also the presence in the case of sufficient evidence confirming the person's involvement in the criminal offense. In addition, exemption from criminal prosecution requires the establishment and proof of the conditions provided for by law, the presence of which makes it possible to apply the institution of criminal law in question. There is no doubt that an objective and complete study, as well as legal registration of the noted circumstances becomes possible only after the initiation of a criminal case. At the stage of preliminary verification, it is far from always possible to establish and consolidate these circumstances, due to which the existing procedure for exemption from criminal liability only after the initiation of a criminal case should be recognized as fully justified and expedient.

Exemption from criminal liability is permissible only in cases where there is evidence in the case of the person's involvement in the crime of which he is suspected or accused. In all other cases, when incriminating evidence is absent or insufficient, the criminal case is terminated due to the lack of proof of the person's involvement in the committed crime.

102 L. V. Golovko New grounds for exemption from criminal liability and problems of their procedural application // State and Law. 1997. No. 8. P. 83.

laziness. In this regard, the position of R. Kussmaul raises significant questions, according to which, when a criminal case is terminated, including for non-rehabilitating circumstances, one should not provide evidence of a person's guilt and refrain from formulations stating that the persons against whom they are imposed have committed crimes. The decisions of the investigating bodies or court rulings themselves, according to R. Kussmaul, are procedural acts not on establishing guilt, but on refusing to prosecute 103.

The very concept of “termination of a case on non-rehabilitating grounds”, in the manner of which a person is released from criminal liability, presupposes that he has committed a crime, but for certain reasons is not subject to criminal compulsion. By virtue of this, by terminating a criminal case on a non-rehabilitating basis, in particular by releasing the perpetrator from criminal liability, the court, prosecutor, investigator or interrogator thereby ascertain his guilt. Otherwise, the person is recognized as innocent, and the criminal prosecution is terminated on a rehabilitating basis, in particular, due to the lack of evidence of his involvement in the crime committed, due to the absence of corpus delicti, etc. Taking into account the above, R. Kussmaul's position seems unfounded.

The legal consequence of exemption from criminal liability is the complete and unconditional termination of all negative consequences that could be applied for the commission of a crime. With the adoption of the decision to release from criminal liability, the perpetrator is relieved of the obligation to endure the restrictions provided for by law. legal status... In the event that criminal liability has already begun to be implemented

103 See: Kussmaul R. Any termination of a criminal case - rehabilitates // Russian Justice. 2000. No. 9.P. 45.

vatsya, the person is exempted from their further execution. Termination of a criminal case entails the annulment of all criminal-legal relations between the guilty person and the state arising from the fact of the crime. E.V. Davydova points out that release from criminal liability means the release of a person from all legal implications the commission of a crime by him: a) the person is not subject to official state legal condemnation; b) the person cannot be punished and is not considered to be convicted; c) the fact of the commission of a crime loses all criminal law significance and does not form a sign of repeated occurrence in the event of a new crime; d) with release from criminal liability, all measures of procedural coercion that have taken place are canceled 104.

It should be noted, however, that exemption from criminal liability is a non-rehabilitating circumstance and does not mean acquittal of a person who has committed a socially dangerous act. At the same time, S.I. Zeldov draws attention to the fact that exemption from criminal liability extinguishes criminal law the fact of committing a crime, while maintaining its criminological significance and the civil law consequences of a tort 105.

In this regard, we cannot support the opinion of V. Ch. Pes-lyakas, according to which the commission of a new crime after the release of a person from criminal responsibility should be recognized as repeated 106. The annulment of all criminal law relations due to release from criminal liability excludes the possibility of applying to a person any legal consequences arising from

104See: Davydova E.V. Reconciliation with a victim in criminal law. Auto-

ref .... diss. ... Cand. jurid. sciences. Stavropol, 2001.S. 21.

105 See: Zeldov S.I. Release from punishment and serving it. M., 1982.S. 105.

106See: Peslyakas V. Ch. Criminal liability and exemption from it. Tutorial... Minsk, 1988.S. 60.

from the fact of committing a criminal act. This includes, among other things, the impossibility of recognizing the commission of a new crime as repeated, if the person was released from criminal liability for the previous act. This opinion finds its confirmation in the law. Part 2 of Art. 16 of the Criminal Code of the Russian Federation establishes the rule according to which a crime is not recognized as committed repeatedly if for a previously committed crime a person was released from criminal liability in accordance with the procedure established by law or a conviction for a previously committed crime was removed or extinguished.

At the same time, exemption from criminal liability does not mean that the crime will be decriminalized. In the case of the application of the institution in question, the perpetrator is relieved of the obligation to endure negative criminal-legal consequences. However, a socially dangerous act remains criminal, due to which all other relations that have arisen with its commission, upon release from criminal liability, do not change. For this reason, the point of view of S.G. Kelina seems to us quite reasonable, according to which when two or more accomplices commit a criminal act, if subsequently one of them is released from criminal liability, the said crime is still recognized as committed by a group of persons 107.

Here, however, it is worth noting that in this case a number of procedural contradictions arise. “A person whose case was terminated by the investigator on non-rehabilitating grounds,” writes V. A. Popelyushko in this regard, “both before the end of the investigation and in court is considered a witness. His testimony is regarded as a witness ... But such a witness is not a witness, but an accomplice in the crime. His vital interest

107 See: Kelina S.G. Theoretical issues of exemption from criminal liability. M '1974.S. 14.

understandable. The assessment of his testimony should also be appropriate. The transformation of an accomplice in a crime into a witness opens up a real possibility of violations of the law, since the content of his testimony can also be affected by his dependence on the discretion of the investigator who dismissed the case ”108.

Exemption from criminal liability, with the exception of the grounds established by Art. 90 of the Criminal Code of the Russian Federation (release from the responsibility of a minor, with the use of compulsory measures of educational influence), is unconditional. By virtue of this, it is not in any way dependent on the subsequent behavior of a person released from criminal liability (committing a new crime or other offense in the future, an antisocial lifestyle, dismissal from work, etc.), as well as any other circumstances (changes in the criminal law, socio-political situation, etc.). Exemption from further criminal prosecution terminates all criminal law relations that have arisen between the perpetrator and the state.

At the same time, opinions are expressed in the literature about the unreasonableness of the unconditional termination of all criminal legal consequences as a result of release from liability. “It would be advisable that the norms of the General Part of the Criminal Code, allowing a compromise with the guilty person in exchange for his confession, reconciliation with the victim, elimination of the harmful consequences of the deed, provide for the conditional - for three years he felt the invisible sword of the criminal law above him, clearly realized that this sword would immediately fall on his head if he pressed

108 Popelyushko V.A. Termination of criminal cases on defamatory grounds and complicity // In the collection. Grounds and procedure for the implementation of criminal liability. Kuibyshev, 1989.S. 139.

destroys the conditions of his release from criminal responsibility ”109.

In the author's opinion, the presented point of view is very controversial. Exemption from criminal legal consequences is an act of trust in the perpetrator on the part of the state, which is dictated by considerations of the inexpediency of bringing a person to justice. In addition, in many cases, the prospect of exemption from criminal liability encourages the perpetrator to commit socially useful actions. This means that the effectiveness and efficiency of the institution under consideration largely depends on the finality of the termination of all legal relations arising from the fact of the commission of a crime.

It should also be noted that exemption from criminal liability is applied only in cases where there are sufficient grounds to believe that the danger of the perpetrator has significantly decreased or disappeared. The existence of doubts about this circumstance calls into question the advisability of releasing such a person from criminal liability. In this case, the law provides for the possibility of a conditional conviction (Article 73 of the Criminal Code of the Russian Federation), when during the probationary period, in case of admitting antisocial, including criminal behavior, the convicted person may be subjected to the actual serving of the assigned sentence. Taking into account these circumstances, the unconditional release from criminal liability seems to us to be a well-grounded decision on the part of the legislator.

Upon release from criminal liability, as mentioned earlier, all negative legal consequences associated with the fact of a criminal act are canceled. The current Criminal Code, unlike the previous one, does not provide for the possibility of de-penalizing answer-109A Likperov H. D. Specified work. P. 18.

ness, that is, "the use of a softer measure of state coercion in comparison with criminal punishment" 110. So, in accordance with Art. 50 1 of the Criminal Code of the RSFSR 1960 a person who committed a crime for which punishment was imprisonment for a term of not more than one year or another more mild punishment, could be exempted from criminal liability, which was replaced by the application administrative penalty... Today, exemption from criminal liability completely terminates all relations that have arisen between the guilty party and the state. The law does not provide for the possibility of implementing other, less severe penalties.

It was noted above that the subject competent to make a decision on exemption from criminal liability is the court, the prosecutor, the investigator or the body of inquiry with the consent of the prosecutor. Accordingly, the proceedings on the case can be terminated both at the stage of preliminary investigation and judicial examination of the case. In this regard, in the legal literature of recent years, the question of the compliance of the norms governing the procedure for exemption from criminal liability with the provisions of the Constitution of the Russian Federation remains controversial.

A necessary precondition for the release of a person from criminal liability is the proof of his involvement in the alleged crime. In other words, only the person who is officially found guilty of committing a crime can be exempted from liability. Moreover, according to Part 1 of Art. 49 of the Constitution of the Russian Federation, each accused is considered innocent until his guilt is proven in the manner prescribed by law and established by a court verdict that has entered into legal force. At the same time, in accordance with the existing procedure for exemption from criminal liability,

110 Galperin I.M. Punishment: social functions, application practice. M, 1983.S. 169.

the application of this legal institution can be decided not only by the court, but also by other authorized bodies, and at the pre-trial stage.

In this regard, T. N. Dobrovolskaya notes that in Art. 160 of the Constitution of the USSR (Article 49 of the Constitution of the Russian Federation) the question is clearly and categorically resolved that only the court in our state is given the right to recognize this or that citizen guilty of committing a crime. For this reason, in her opinion, it is incompatible with the recognition of the prosecutor, the investigator and the body of inquiry of the right to terminate the case with the release of the guilty from criminal liability, because in these cases it is undoubtedly that the person is found guilty by those bodies or officials which the Constitution did not give such powers 111.

This opinion is supported by V. Bozhiev, who writes the following about this: “Termination of the criminal case on the grounds specified in Art. 6 "-9 of the Criminal Procedure Code (Art. 25-28 of the Criminal Procedure Code of the Russian Federation. - V.E.) ... does not comply with the provisions of Part 1 of Art. 49 of the Constitution of the Russian Federation. Moreover, this inconsistency also occurs when the judge discontinues the case ... at the stage preceding the trial ”112. In this regard, VS Shadrin emphasizes that “the presumption of innocence establishes an absolutely clear distinction between the accused (suspect) and the offender. If in respect of a person there is no verdict based on indisputable evidence and entered into legal force, he in no case can be considered guilty ”113. On this basis, Yu.M. Grosheva proposes to provide

111 See: Dobrovolskaya T.N. On changing the order of termination of criminal cases and some controversial problems of justice // Constitution of the USSR and further strengthening the rule of law and law and order. M., 1979.S. 177-178.

112 B Ozh'ev V. Termination of cases on pre-trial stages criminal proceedings // Russian justice. 1996. No. 5.P. 22.

113 Shadrin V.S. Ensuring individual rights in the investigation of crimes. M., 2000.S. 23.

the possibility of exemption from criminal liability only to the court, while procedural act, fixing its form, should, in his opinion, be the court's verdict of guilt "4.

I.M.Gutkin takes a different position in resolving this issue, who notes that existing order termination of criminal cases by the investigating authorities and the court does not contradict the Constitution 115. A.P. Gulyaev also believes that in the Constitution it comes on conviction, as an act of justice, through which criminal responsibility is implemented, and no one can be subjected to criminal liability other than by a court verdict. However, when a person who has committed a crime is released from criminal liability on non-rehabilitating grounds, his guilt can also be established in the form of a decision of the competent state authority (prosecutor, investigator, inquirer, with the consent of the prosecutor) 116.

According to S. A. Danilyuk, it is necessary to separate categories such as conviction and establishment of guilt. The conviction is, according to the position of this author, the prerogative of the court and serves as the basis for the imposition of criminal punishment. Establishment of guilt is within the competence of the bodies of inquiry and preliminary investigation and may become a prerequisite for the termination of a criminal case on non-rehabilitating grounds. These provisions give S. A. Danilyuk a reason to believe that release from criminal liability by termination of the criminal case does not contradict the principle of the presumption of innocence "7.

114 See: Groshevoy Yu.M. Exemption from criminal liability at the trial stage. Kharkov, 1979.S. 16-17.

115 Gutkin I. M. Some problems of criminal procedure in the light of the Constitution of the USSR // Constitution of the USSR and further strengthening of legality and law and order. M .. 1979.S. 164.

116See: A.P. Gulyaev Investigator in criminal proceedings. M., 1981.S. 153.

117 Danilyuk S.A. Issues of exemption from criminal liability // Jurisprudence. 1987. No. 3. S. 85-91.

The author is convinced that the second of the presented points of view is more preferable. Termination of a criminal case in connection with release from criminal liability does not signify the establishment of a person's guilt in committing a crime and does not constitute an obstacle to the exercise of his right to judicial protection their interests. It should be borne in mind that the termination of a criminal case on non-rehabilitating grounds in all cases requires the consent of the perpetrator, by virtue of which the established procedure for exemption from criminal liability does not contradict the provisions of the Constitution of the Russian Federation.

It should also be noted that the study practical aspect The issue under consideration shows that from the standpoint of law enforcement practice, the most effective and expedient is the application of norms that provide for the possibility of exemption from criminal liability at the stage of preliminary investigation, when it has not yet been implemented or has just begun to be implemented. Otherwise, if the decision to release from liability were made after the court's conviction, the effectiveness of this institution of criminal law could be significantly reduced. In addition, with this approach, the line between exemption from criminal liability and exemption from criminal punishment, which, with all their similarity, are independent legal institutions, loses its shape.

For these reasons, the termination of the case with release from criminal liability at the stage of preliminary investigation or judicial examination does not contradict the Constitution, and is also absolutely justified from the point of view of the practice of its application.

The issue in question was finally resolved in a resolution The Constitutional Court RF of October 28, 1996, which recognized that the existing practice of exemption from criminal liability corresponds to

Of the Constitution of the Russian Federation, since the termination of a criminal case does not mean that a person is guilty of committing a crime, it does not interfere with the exercise of his right to judicial protection and presupposes obtaining consent to terminate a criminal case on the indicated grounds.

An interesting approach to the solution of the issue under consideration comes from M.S.Strogovich, who believes that a decision to terminate a criminal case is not an act of recognizing the accused as guilty of a crime, no matter what the grounds for this decision and whoever it comes from. No one, according to this author, can be found guilty when the criminal case is terminated, since if the case is terminated, then he, in legal meaning there is no such concept, and without a criminal case a person cannot be found guilty of committing a crime.

Based on this, he claims that in criminal proceedings there has never been a conviction of the accused at the termination of the criminal case, and the indication in the law that the person who committed the crime is exempted from criminal liability is nothing more than an unfortunate wording in the text Law "9. This position is far from indisputable. It was noted above that if the involvement of a person in the commission of a crime is not proven, then there are no grounds for exempting him from criminal liability due to the fact that the very possibility of its occurrence is excluded. Therefore, release from criminal liability only a person whose involvement in the crime has been established and proven is possible, otherwise he will be recognized as innocent, and the case will be terminated on exonerating grounds.

118 Bulletin of the Constitutional Court of the Russian Federation. 1996. No. 5.P. 14.

119 See: Strogovich M.S. Presumption of innocence and termination of a criminal case on non-rehabilitating grounds // Soviet state and law. 1983. No. 2.P. 73 74.