Commentary to Art. 300 of the Criminal Code
1. The objective side is expressed in the form of actions to illegally release a person suspected or accused of committing a crime from criminal liability by issuing a resolution on the illegal refusal to initiate a criminal case, termination of a criminal case or termination of criminal prosecution. These actions are performed against the suspect or accused. Illegal exemption from criminal liability by illegal refusal to initiate a criminal case or terminate a criminal case is possible on the grounds of the absence of an event or corpus delicti, in connection with reconciliation with the victim, etc. The termination of a criminal case entails the simultaneous termination of criminal prosecution. Illegal release from criminal liability by terminating criminal prosecution is possible on the grounds of non-involvement of the suspect or accused in the commission of a crime, as a result of an amnesty act, in connection with active repentance, with compensation for damage in accordance with Art. 76.1 of the Criminal Code in cases of crimes in the field of economic activity, etc. Exemption from criminal liability by terminating criminal prosecution on non-rehabilitating grounds in the absence of consent (objections) of the suspect or accused is also qualified under this article.
2. The crime is recognized as completed from the moment the relevant procedural decisions are made in the form of a resolution.
3. The subjective side is characterized by direct intent, implying the awareness that the release of a person from criminal liability is illegal.
4. Special subject: a person who, in accordance with the current criminal procedural legislation, can make an appropriate decision.
5. The adoption of a knowingly unjust (illegal) decision to terminate a criminal case (criminal prosecution) by a judge is qualified under Art. 305 CC.
The Supreme Court summarized the practice of exemption from criminal liability with the imposition of a court fine
On July 10, the Presidium of the Supreme Court of the Russian Federation approved a review of judicial practice of exemption from criminal liability with the imposition of a judicial fine (Article 76.2 of the Criminal Code of the Russian Federation).
The document, containing 13 legal positions, notes that during the period of validity of Art. 76.2, 104.4 and 104.5 of the Criminal Code (since 2021), the institution of a judicial fine has confirmed its relevance. Thus, in 2021, it was assigned to over 33 thousand persons, which is 1.6 times more than in 2017. This measure of a criminal legal nature was applied to persons who committed crimes of minor and medium gravity (theft, fraud, misappropriation or embezzlement, intentional destruction or damage to property, etc.).
The Supreme Court indicated that the courts generally correctly applied criminal and criminal procedural legislation regulating the grounds and procedure for release from criminal liability with the imposition of a judicial fine, guided by the explanations of the Plenum of the Supreme Court (resolution dated June 27, 2013 No.; dated December 22, 2015 No. dated February 1, 2011 No. and dated December 20, 2011 No.).
Practice of applying court fines
As stated in paragraph 1 of the review, the law does not prohibit the use of this measure in cases where the disposition of the incriminated article does not provide for causing damage or other harm as a mandatory feature of the objective side of the crime.
It is emphasized that in each specific case the court must not simply state the presence or absence of grounds for exemption from criminal liability, but make a fair and reasoned decision taking into account the entire set of data characterizing, among other things, the characteristics of the object of the criminal offense and the circumstances of its commission , actions taken by a person to compensate for damage or otherwise make amends for harm, a change in the degree of social danger of the act as a result of such actions, the identity of the perpetrator, as well as circumstances mitigating and aggravating punishment.
Paragraph 2 notes that, according to paragraph 21 of Resolution No. 19, methods of compensation for damage and reparations must be legal and not infringe the rights of third parties. However, they are not limited by law. Thus, the courts correctly assume that the harm caused by a crime can be compensated in any form that makes it possible to compensate for the negative consequences, including through a court fine.
In paragraph 3 of the review, the Supreme Court indicated that a person can also be released from criminal liability with the imposition of a court fine if material damage is not actually caused due to the fact that the crime was not completed due to circumstances beyond his control. In this case, the return of stolen property to the victim can be recognized as compensation for damage or reparation, provided that this was done voluntarily (clause 4 of the review). At the same time, the validity of the courts’ refusals to apply the provisions of Art. 76.2 of the Criminal Code, if the stolen items were seized during the arrest of a person, as well as during the investigation.
Paragraph 5 of the review emphasizes that property status and the lack of a source of income do not prevent exemption from criminal liability and the application of a court fine. At the same time, the courts proceed from the fact that the need to clarify the property (financial) situation is provided exclusively when determining the amount of a court fine, which corresponds to Art. 19 of the Constitution of the Russian Federation.
The Supreme Court also clarified that the reasons for the decision to satisfy the petition to terminate the criminal case and impose a court fine must provide the grounds for termination of the case and (or) criminal prosecution, as well as an indication of the consent of the suspect or accused to this. Thus, the courts found out whether the person in question compensated for the damage or otherwise made amends for the harm caused, and provided evidence in their decisions confirming this. If the courts of first instance did not comply with the relevant requirements of the Code of Criminal Procedure, higher authorities reasonably canceled such decisions (paragraph 6 of the review).
As stated in paragraph 7, the consent of the victim as a prerequisite for the release of a person from criminal liability under Art. 76.2 of the Criminal Code is not provided. The Supreme Court noted that in most cases, during the preliminary investigation, the victims’ opinion about this possibility was clarified, formalized in the form of petitions or written consent to terminate the case. If the victim objects to the termination of the case with the imposition of a court fine, the judge finds out the reasons for his position, and also evaluates the sufficiency of the measures taken by the accused to compensate for the damage or make amends for the damage to recognize the conditions provided for in Art. 76.2 CC.
Paragraph 8 of the review explains that the amount of a court fine cannot exceed half the maximum amount of the fine provided for in the relevant article of the Special Part of the Criminal Code. If a fine is not provided, then the amount of the court fine should not exceed 250 thousand rubles. The minimum amount of a court fine has not been established.
The Supreme Court recalled that paragraph 71 of Resolution No. 58 states that a judicial fine imposed on the basis of Art. 76.2 of the Criminal Code for a person released from criminal liability is not a criminal punishment, but refers to other measures of a criminal legal nature. Rules Art. 46 of the Criminal Code do not apply to the imposition and execution of a court fine. The amount of the latter is determined by the court, taking into account the gravity of the crime and the property status of the person exempted from criminal liability and his family, as well as taking into account the possibility of him receiving a salary or other income.
In paragraph 9 of the review, the Supreme Court indicated that the Criminal Code does not contain provisions regulating the procedure for imposing a court fine, as well as determining its final amount in relation to persons who have committed several crimes of minor and (or) medium gravity (forming their totality). At the same time, paragraph 16.1 of Resolution No. 19 emphasizes that the commission by a person for the first time of several crimes of minor and (or) moderate gravity does not prevent him from being released from criminal liability with the imposition of a court fine.
The Supreme Court confirmed the validity of the courts' position that a court fine is not a punishment imposed for a specific crime, but another measure of a criminal law nature, and the provisions of Art. 69 of the Criminal Code. Since exemption from criminal liability on the basis of Art. 76.2 of the Criminal Code is a one-time court decision in relation to one person, then taking into account all the circumstances that allow us to judge the existence of grounds and conditions for making such a decision, regardless of the number of crimes committed, instead of punishment, one single measure of a criminal legal nature is always applied in the form of a court fine. . When determining the amount of a judicial fine for several crimes, the courts, the Supreme Court emphasized, justifiably apply the sanction of the article establishing the most stringent liability.
Procedural features of imposing a judicial fine
As stated in paragraph 10 of the review with reference to paragraph 25.1 of Resolution No. 19, the consent of the suspect is a mandatory condition for the termination of the case in connection with the imposition of a court fine, since it relates to non-rehabilitative grounds. The Supreme Court emphasized that the courts reasonably refuse to satisfy the requests of investigators or interrogators if the accused has not confirmed consent.
Paragraph 11 notes that the participation of the prosecutor in the consideration of the relevant request of the investigator or interrogating officer is mandatory. At the same time, the Supreme Court emphasized that the opinion of the prosecutor who did not support the petition does not interfere with the application of Art. 76.2 of the Criminal Code, if the court determines the existence of legal grounds for termination of the case and (or) criminal prosecution with the imposition of a court fine.
When considering a petition, the court must make sure that the charge brought against a person for committing a crime of minor or medium gravity is justified, supported by the evidence collected in the case, the amount of damage or other harm is determined correctly, and the case file contains sufficient information to allow the court to terminate the case or criminal prosecution and appoint the accused receives a court fine (paragraph 12 of the review).
In cases where the court, when considering a petition, establishes other grounds for dismissing the case (both rehabilitating and non-rehabilitating), it refuses to satisfy the petition and returns it with the case materials to the head of the investigative agency or the prosecutor (paragraph 13 of the review).
At the same time, if during a preliminary hearing or trial in a criminal case received by the court with an indictment or resolution, the grounds provided for in Art. 25.1 of the Code of Criminal Procedure, and the parties file a petition to release the defendant from criminal liability on other grounds (for example, in connection with reconciliation of the parties or active repentance), then the court dismisses the case on the basis to which the defendant does not object.
If the court comes to the conclusion that it is impossible to terminate the case due to active repentance or reconciliation of the parties, then, in the absence of objections from the defendant, it terminates it and imposes a court fine.
Lawyers assessed the practical significance of the legal positions of the Supreme Court
Lawyer and head of criminal legal practice Artem Karakasyan noted that over the three years of application of the institution of a judicial fine, controversial issues have accumulated, and therefore the review is of particular importance from the point of view of adjusting practice and expanding the scope of application of this measure.
“The Supreme Court has regulated the imposition of a judicial fine in cases where a person is accused of committing a formal crime, i.e. without the occurrence of specific harmful consequences and the presence of a victim,” he explained. – Some courts in such cases, for example under Art. 327 of the Criminal Code “Forgery, production or sale of counterfeit documents, state awards, stamps, seals, forms”, they refused to satisfy requests for the application of a court fine, because they believed that in the absence of a victim it is impossible to make amends for the harm caused by the crime.”
The expert added that the position of the Supreme Court was based on the Determination of the Constitutional Court of the Russian Federation of October 26, 2021 No. 2257-O that the absence of a direct indication in the Criminal Code of the occurrence of specific consequences does not mean that the commission of a crime did not cause any harm or did not entail the emergence of a real threat of causing it. “In this regard, the Supreme Court rightly indicated that the commission of a formal crime by a person does not exclude the application of the rules on a judicial fine to him,” Artem Karakasiyan emphasized.
Another important clarification, according to the lawyer, concerns the methods of compensation for damage and making amends for harm, which, as indicated in the review, are not limited by law. “The courts can therefore take into account any measures taken by the defendant to minimize the harm caused to him,” he believes. “It must be taken into account that the sufficiency of measures to make amends for damage is an evaluative concept, determined solely at the discretion of the court.” The expert added that this could provoke a surge in appeals to higher authorities to review sentences due to the subjective approach of the courts.
Artem Karakasyan also noted that the provisions of the review corrected the practice regarding the imposition of a judicial fine in the absence of the consent of the victim. “The Judicial Collegium for Criminal Cases of the Supreme Court reasonably concluded that in order to apply the norms of Art. 76.2 of the Criminal Code does not require the consent of the victim if the requirements for imposing a judicial fine are met. Thus, the Court recognized the application of this norm by analogy with the norm on exemption from criminal liability in connection with reconciliation with the victim as incorrect.”
Lawyer at Feoktistov and Partners Law Firm Ruslan Dolotov also considers the legal positions included in the review to be extremely important. He emphasized that the Presidium of the Supreme Court unequivocally answered a very controversial issue, which caused a lot of discussion in the criminal law doctrine, regarding exemption from criminal liability with the imposition of a judicial fine for several crimes at once: “The court does not first impose a judicial fine for each act and does not add it up.” final fine” by analogy with the rules for assigning punishment for a set of crimes. It is clarified that in this situation, one judicial fine is imposed regardless of the number of acts committed, the amount of which is determined based on the sanction that establishes the most severe liability for the crime included in the aggregate.”
Also, the lawyer added, the review provides a clear answer to the question of how to apply Art. 76.2 of the Criminal Code with the simultaneous existence of grounds for exemption from criminal liability under other articles of the Code. Of fundamental importance, according to Ruslan Dolotov, is the position that exemption from liability with the imposition of a judicial fine can be applied even in cases where we are talking about an attempted crime and the damage was not actually caused. This question, the expert believes, is also relevant for Part 2 of Art. 76.1 CC; he expressed the hope that the version of application of Art. presented in the review. 76.2 of the Criminal Code in relation to attempted crimes will serve as an impetus for solving a similar problem for this article.
“Unfortunately, the review does not even hint that Art. 76.2 of the Criminal Code can be applied when the category of gravity of the crime changes. The Resolution of the Plenum of the Supreme Court dated May 15, 2021 No. 10 clearly states that the application of Part 6 of Art. 15 of the Criminal Code may entail release from punishment with reference to Art. 75 and 76 of the Code. In such a situation, despite the controversial approach (Articles 75 and 76 of the Criminal Code cannot serve as a basis for exemption from punishment only, since they deal with exemption from criminal liability in general), the non-extension of the “jurisdiction” of Part 6 of Art. 15 at station 76.2 of the Criminal Code looks like an extremely unsystematic step,” the lawyer concluded.
Lawyer of the Tyumen Region Administration Ilya Slivko emphasized that the use of a judicial fine in Russia as a punishment has become widespread. “Courts very actively use this form of termination of criminal proceedings, and I cannot say that this is bad,” he believes. – As always, excesses occur when law enforcement officers persuade people to admit guilt, not always for a correctly qualified crime and proven, promising to terminate the criminal case with the imposition of a court fine. They present the situation as a benefit that only they can provide. The lawyer’s task in this case is to explain to the client all the “pros” and “cons.” The biggest disadvantages, according to the expert, are the fact that a person is brought to criminal liability and further consequences, for example, in the form of a claim for damages.
Ilya Slivko added that sometimes law enforcement officers, prosecutors and courts use a court fine as a “means of trade” in cases where the evidence of guilt is very weak. “Such precedents also take place. But I would like to note once again that in the general justice system in Russia, which has a lot of questions and a huge number of problems, the practice of applying a judicial fine is exclusively positive,” he noted.
According to the lawyer, in his practice, only three cases ended in the imposition of a court fine - under Art. 134, 176, 327 CC. In the first case, the parties in court announced the termination of the criminal case for reconciliation of the parties. However, the prosecutor was against it, arguing that the crime was committed against sexual integrity. “The very fact that a crime was committed in the area of sexual integrity cannot be a basis for refusing to terminate a criminal case pending reconciliation of the parties. At the request of the prosecutor, the case was dismissed by the court with a judicial fine of 40 thousand rubles, and neither I, nor the victims, nor the defendant applied for this, explained Ilya Slivko. – Taking into account the explanations of the Supreme Court given in paragraph 13 of the review, I would file an appeal and focus the court’s attention on the defendant’s disagreement with the termination of the case with the application of a court fine. In that situation, I had to agree with the court’s decision.”
In another case, a request for a judicial fine was filed at the trial stage. “This was a way out for both the defense and the prosecution, since there was no evidence of the crime, there were many doubts about guilt, the total period of criminal proceedings in the case was already more than three years, and it was clear that the defendant would still be convicted, however a verdict could still be months away. Such a long period of proceedings did not allow my client to live and work normally, and we had to agree to terminate the case with the application of a court fine,” the expert noted.
In the third case, the lawyer explained that the request to dismiss the case with the application of a court fine was made at the preliminary investigation stage, and with the consent of the prosecutor's office, the court dismissed the case.
Ilya Slivko named paragraphs 2, 7, 11, 13 as particularly interesting from a practical point of view of the review. “So, paragraph 2 explains the possibility of compensating for damage in any form, and not only through compensation for material damage. Lawyers actively use the practice of compensation for damages for non-property crimes - for example, under Art. 228 of the Criminal Code, where there are no victims, by sending money to orphanages and charitable foundations. But the review paragraph under consideration provides an example of socially useful work. I have never seen this in my practice and have not seen similar examples from my colleagues,” he explained.
The expert also considers it important to clarify that the opinion of victims and the prosecutor does not have to be taken into account in order to apply punishment in the form of a court fine. “Often the courts follow the lead of both prosecutors and victims when considering the issue of both imposing a punishment and applying a court fine,” noted Ilya Slivko. “In the review under consideration, the Supreme Court again drew the attention of the courts to the need, first of all, to comply with the law, and secondly, to take into account the opinion of the prosecutor.”
According to the lawyer, the situation with the opinion of the victims looks a little different. “Previously, one of the main non-rehabilitative grounds for termination of a case was the reconciliation of the parties, where the opinion of the victims was taken into account. This created conditions when victims bargained with defendants for the right to dismiss the case, citing amounts that did not correspond to the actual damage. Now, with the possibility of termination of the case with the application of a court fine, the vicious practice can be eradicated,” Ilya Slivko emphasized.
According to the lawyer, the review will help improve the practice of applying court fines and will make it easier for lawyers to convince the courts of the need to terminate a criminal case for one reason or another.
Second commentary to Art. 300 of the Criminal Code of the Russian Federation
1. The concepts of suspect and accused are given in criminal procedure legislation.
2. Such release from criminal liability will be considered illegal if it is carried out in gross violation of the norms of criminal and criminal procedural legislation, without taking into account the actual circumstances of the crime committed, or with a distortion of the truth.
An official, abusing his official powers, ignores these requirements and illegally releases a person from criminal liability, terminating the case. Forms of abuse can be very different: distortion of the actual circumstances of the incident; deliberately incorrect determination of the form of guilt, excluding criminal liability, etc.
The commission of this act is possible only at the stage of preliminary investigation; the crime is considered completed from the moment a decision is made to terminate the case.
3. The subjective side is characterized by direct intent.
4. The subjects of the crime are officials who have the right to be exempt from criminal liability: the prosecutor, the investigator and the person conducting the inquiry.
Grant of parole
If positive changes occur to him while a prisoner is serving his sentence, then his remaining sentence can be changed to a more lenient one. During his stay in a correctional institution, a prisoner must distinguish himself by exemplary behavior, compensate for material damage, if it was assigned, and spend a certain time in a correctional institution, depending on the qualifications of his case. After a person is released, law enforcement control is established over him until the full time of departure has expired.
During this time, it is impossible to violate the law, since then for the state the person will be considered uncorrected, which means that the lenient sentence will be canceled and he will have to be served in a correctional institution.
Replacing the remaining time with a softer look. In the legislation, there are different degrees of qualification of a criminal case, for example, a serious article or an article of moderate gravity.
- Colony-settlement.
- General regime colony.
- A maximum security colony.
Each institution has its own rules; in a maximum security colony, the rules of conduct for a prisoner are strict: he does not have the right to private meetings or the right to frequently receive parcels.
When serving part of the assigned period of isolation, as well as when certain grounds arise, the prisoner has the right to change the type of responsibility. If the court decides that the data provided may allow the convict to serve correction under more lenient conditions, then the convict is transferred to a correctional institution of the appropriate type, and service continues.
In essence, the prisoner receives grounds for easing the conditions of detention and more frequent meetings with relatives, but the total term determined by the court as a measure for his crime remains the same.
Exemption from liability due to illness
During the term of serving a sentence, a person is kept in fairly harsh conditions, as a result of which his health may deteriorate, both physical and mental.
- Softer types.
- He may be entitled to a complete cessation of persecution.
In the case of mental disorders, a person is most often transferred to special psychiatric hospitals, since such a patient poses a danger to society, although he may not realize it.
In other cases, a person is released because a correctional colony is not suitable for housing people with disabilities, and also if it is difficult for them to receive the necessary treatment that is prescribed. A prisoner with special illnesses may not be released, but the sentence may be commuted to a more lenient form if the illness suggests such a need.
The possibility of replacing the term with a more lenient one is always determined by the court, this case is no exception. To carry out the process, the prisoner must comply with a certain procedure established by the state: submit a request to replace the punishment with a more lenient form, provide evidence of his correction, characteristics from the correctional institution and other documents indicating the possibility of replacement.
Deferment of serving a sentence
In some cases, convicted persons may qualify for a deferment of execution. This concept and types of exemption from criminal punishment are associated with the fact that the state temporarily grants a reprieve to the guilty person. Essentially, for the guilty person, this means that the sentence will be served after a certain time after the trial, and not immediately, as in the vast majority of cases.
Certain citizens with special circumstances can count on such installment plans.
- a pregnant woman, as well as parents of both sexes, provided that they are the only official representatives of the child and agree to his upbringing and maintenance;
- if the severity of the crime is mild or moderate, and the person applying for a deferment has no more than two convictions;
- for crimes related to the distribution of drugs, a deferment may also be granted, implying that the punishment will be incurred later, however, to obtain it, the offender must have an officially registered drug addiction, and it is also necessary that the person agrees to treatment for drug addiction.
If a deferment from serving a sentence is requested by a person who is the only parent of a minor, then such person is subject to certain requirements that he must fulfill.
Unconditional grounds for refusing a deferment are considered. If the crime is classified as serious, and the period of imprisonment will be more than 5 years, then serving it takes place immediately after the trial.
A person will be denied this opportunity if the articles for which he may be held liable are terrorist.
If a deferment is applied in connection with the upbringing of a child or children, the convicted person must have a permanent place of residence with which he must provide for the child. A reprieve is not provided to those previously deprived of parental rights, as well as if the offender had previously committed unlawful acts against the children under their care and was sentenced for this to a real term of serving in a correctional colony.
It is worth noting that in international use, deferment of punishment is quite limited. In Russia they can provide it for several years. True, the issue of the birth of new children during the period while the deferment lasts is slightly unregulated, but in general this is the only country that offers such an opportunity to avoid responsibility for some time. Foreign practice has a slightly different type of application of such measures. In foreign countries, for example, in the USA, this method is provided to convicts extremely rarely and has clearly regulated terms: 1-3 months, depending on the article and the identity of the criminal. As a rule, in the States this opportunity is provided in cases of death sentences.
