What is the article of the Code of Criminal Procedure about?
Active repentance is understood as an awareness of guilt, which is clearly expressed in the actions of the accused. The active actions of the offender may consist in smoothing out the conflict through compensation for harm, monetary compensation, payment for treatment and other actions indicating that the person regrets and seeks to neutralize or mitigate the socially dangerous results of the crime.
Active repentance may consist of voluntarily confessing, assisting the investigative authorities in solving a crime, as well as trying to prevent the onset of adverse consequences.
Voluntary renunciation of a crime and repentance are often confused. This is not strange, because there are indeed a huge number of similarities, but there are also significant differences.
The main one is that voluntary refusal completely excludes criminal liability, and active repentance does not exempt from liability, but mitigates punishment and serves as the basis for closing criminal proceedings.
Exemption from criminal liability due to active repentance is possible if a person committed a crime for the first time, after which he turned to law enforcement agencies with sincere repentance and compensated all losses to the injured party.
This point applies only to persons who have not previously been convicted. People who have already been prosecuted but were released from it or were released from punishment are not considered to have previously been convicted, so the rule applies to them as well.
Termination of a criminal case due to active repentance is possible in relation to people who have committed a crime of minor gravity. That is, the crime falls into the category of careless and intentional violations of the law, for which the maximum penalty does not exceed 2 years in prison.
Basic provisions
In current legislation there is no concept of “active repentance”; it is present only in the theory of criminal law. In practice, the concept is reflected in the post-crime behavior of the attacker. The legislator stimulates positive post-crime behavior and therefore mitigates the severity of punishment.
Active repentance as a basis for terminating a criminal case has the following features:
- temporal;
- normative (expressed in the fact that all forms of post-criminal behavior are regulated by criminal law);
- objective (expressed in the social usefulness of actions);
- subjective (expressed in the voluntariness of actions).
Active repentance is determined immediately after the violation and before the offender is convicted of the crime committed. The active behavior of a criminal who has already been brought in as an accused and has realized that he has no other choice but to pay off the victim is not considered active repentance.
The main sign of active repentance is the social usefulness of all the actions of the offender after the crime. Her sense of purpose after criminal acts emphasizes her proactive nature. The guilty person actively seeks to atone for his guilt by setting a specific goal - to mitigate the grave consequences of the crime committed or to assist in solving it.
The concept and grounds for exemption from punishment and criminal liability
A resolution to terminate a criminal case due to active repentance may be issued to citizens charged for violating certain articles.
Exemption from liability for crimes is allowed:
- against the person;
- in the field of economics;
- against social order and security;
- against the authorities;
- regarding military service.
Regarding other types of crimes, sincere repentance can only achieve a reduced sentence.
It is impossible to recognize as acceptable the application of the provisions described in Article 28 of the Code of Criminal Procedure of the Russian Federation if their implementation is impossible (in the event of the death of the victim or a belated confession).
Petition to terminate criminal proceedings
To apply the article on release from liability due to repentance, you must contact the judge with a corresponding petition. For the court, this document will be the basis for making a decision.
You can write a statement using the following writing structure:
- The name of the court hearing the case.
- Case number.
- Defendant (personal details).
- Victim (personal information).
- Document's name.
- The main part, which reflects the events of the crime, as well as the socially useful actions of the accused, which can serve as the basis for release from liability or closure of criminal proceedings.
- Links to criminal legal acts that allow release from liability and termination of proceedings in connection with repentance.
- Demand to the court - indicate a request to terminate the prosecution, close the case or release from punishment.
- List of attached documents.
- Date of compilation and signature.
The petition must be supported by documentary evidence of repentance, that is, checks, receipts and notarial agreements, which indicate compensation for harm and assistance in the investigation.
The petition is submitted to a judge, who makes a decision. The presence of such a petition does not yet guarantee release from liability, punishment or a reduced sentence. If a judge finds a person potentially dangerous to society, then repentance will not help him much.
A lawyer at the stage of verification in accordance with Art. Art. 144-145 Code of Criminal Procedure of the Russian Federation
Check in accordance with Art. Art. 144 – 145 of the Code of Criminal Procedure of the Russian Federation in Krasnogorsk, a lawyer at the stage of checking a report of a crime in Krasnogorsk.
Verification of a crime report in accordance with Art. Art. 144 – 145 of the Code of Criminal Procedure of the Russian Federation is the stage preceding the initiation of a criminal case or the issuance of a decision to refuse to initiate a criminal case, or the transfer of a message according to jurisdiction, but ultimately either initiation or refusal will follow. Article 144 of the Code of Criminal Procedure of the Russian Federation regulates the procedure and timing of verification of a report of a crime, and Article 145 of the Code of Criminal Procedure of the Russian Federation regulates decisions made based on the results of its investigation.
The work of a lawyer at the stage of checking a report of a crime in accordance with Art. Art. 144 – 145 of the Code of Criminal Procedure of the Russian Federation in Krasnogorsk may turn out to be much more effective than at the stage of an already initiated criminal case. The law does not provide for the provision of a lawyer at the verification stage in accordance with Art. 51 of the Code of Criminal Procedure of the Russian Federation, which is quite logical, because at this stage there are no suspects or accused, no victims and there is no criminal case, the issue of initiating criminal prosecution is at the resolution stage. Therefore, a criminal lawyer at the stage of verification in accordance with Art. Art. 144 – 145 of the Code of Criminal Procedure of the Russian Federation in Krasnogorsk, can protect your interests only on a paid basis, but it is worth contacting a lawyer for several reasons. It’s no secret that the Russian law enforcement system still operates the so-called “stick system”, according to which the task of law enforcement agencies is not so much to understand the actual circumstances, but to report “to the top” on the number of cases uncovered. crimes and those convicted for them. All this entails the formalism of the investigation, the unfounded prosecution of innocent people, and illegal conviction. How can a lawyer help during the period of verification under Art. Art. 144 - 145 Code of Criminal Procedure of the Russian Federation.
At the stage of checking a report of a crime without a lawyer, it is very easy to persuade the participants in the process to give the explanations required by law enforcement agencies, including on the basis of which a decision is made to initiate a criminal case or not.
If the very fact of committing a crime takes place, the lawyer, already at the stage of verification in Krasnogorsk, will be able to build the correct line of defense and will help determine how, when and what testimony to give.
The presence of a lawyer at the verification stage will give the inquiry officer or investigator some understanding that the person is already provided with serious protection at this stage and opposition will certainly follow. This can help protect yourself from a formal inspection and will allow you to initiate a more thorough check of all circumstances by law enforcement agencies. Well, if the inquiry/investigation sets itself the goal of “cutting down” an easy “stick” on you, then the fact of having a criminal lawyer will take you out of the crosshairs, since law enforcement officers will no longer be able to do it “easy”, and this will become clear.
If a report of a crime is being checked against you or your relative in accordance with Art. Art. 144 – 145 of the Code of Criminal Procedure of the Russian Federation, immediately call a criminal lawyer in Krasnogorsk.
Comments on Article 28 of the Code of Criminal Procedure
Release from liability due to repentance is interconnected with the annulment of the punishment. In both situations, a person admits his guilt and regrets it, and the state provides for a refusal to use coercive measures. Only a judicial authority can exempt a person from punishment, and a prosecutor and even an investigator at the stage of preliminary investigation can relieve a person from criminal liability.
Accordingly, achieving release from liability is much easier than avoiding an already imposed punishment. It is important to understand this and begin active actions at the right time and at the right stage of criminal proceedings.
At the stage of pre-trial investigation, the accused has more favorable conditions for protection and full rehabilitation than during the trial in court.
During the pre-trial investigation, the petition can be submitted to the investigator, and when the case is in court, then to the judge. The result of approval of a petition to close criminal proceedings due to repentance is a decision of the investigator or judge. The investigator's decision has no legal force without the approval of the prosecutor or the head of the investigative department.
Commentary on Article 28 of the Code of Criminal Procedure of the Russian Federation
1. Termination of criminal prosecution in connection with active repentance under Part 1 of this article is possible only in cases of crimes of minor and medium gravity. In addition, according to Part 1 of Art. 75 of the Criminal Code, the crime must be committed for the first time <1>. (For the interpretation of the concept “for the first time” see paragraph 2 of Article 25.)
——————————— <1> See: Naumov A.V. Practice of application of the Criminal Code of the Russian Federation: Commentary on judicial practice and doctrinal interpretation. (item by article) / Ed. G.M. Reznik. M., 2005.
2. The grounds for terminating criminal prosecution, allowing one to draw a conclusion about active repentance, are the simultaneous presence of the following circumstances: a) the person voluntarily turned himself in (see Art. 142 on confession); b) contributed to the detection of the crime; c) compensated for the damage caused or otherwise made amends for the damage caused as a result of the crime (Part 1 of Article 75 of the Criminal Code). If we interpret the norm of Part 1 of Art. 75 of the Criminal Code literally, then we can come to the conclusion that only the totality of these actions means active repentance. Indeed, there will be no active repentance, for example, when a person confesses, but categorically refuses to name his accomplices, testify against them in a confrontation (fearing revenge, not wanting to look like a traitor in their eyes, etc.) or compensate for losses, caused by the crime. But if any of those named in Art. 75 of the Criminal Code of the Russian Federation did not commit actions for valid and objective reasons, but performed others, then the termination of criminal prosecution against him in connection with active repentance, in our opinion, is sometimes still possible. For example, if the accused provided serious and active assistance in solving the crime, fully compensated for the harm caused, was preparing, but failed to confess in due time, because was accidentally discovered and detained by police officers, it would be unfair to refuse to terminate his criminal prosecution on this basis. The same can be said about cases where the accused does not have the means to compensate for the material damage caused, or the crime was quickly discovered by the preliminary investigation authorities even before his help was needed. In any case, assessing the weight of one or another reason specified in Art. 75 of the Criminal Code, and the general conclusion about the presence of active repentance must be made according to the internal conviction of the judge, investigator or interrogator. It should be remembered that the legal fact entailing the termination of criminal prosecution under Art. 28 of the Code of Criminal Procedure is precisely active repentance, and the circumstances specified in Art. 75 of the Criminal Code, there are only evidentiary facts establishing the existence of such repentance.
3. Contributing to the detection of a crime consists in the fact that a person, through his actions, actively assists the body of inquiry, the interrogating officer, the investigator in identifying, searching, and detaining persons involved in the commission of a crime; identifying objects, instruments and traces of a crime, possible witnesses and victims; carrying out investigative and operational search actions. The active role of a person contributing to the detection of a crime can be manifested both in the fact that he himself, on his own initiative, performs the above actions, and in the fact that he voluntarily provides real assistance at the suggestion of the investigator and employees of the inquiry agency.
4. On the concept of making amends for harm caused as a result of a crime, see com. to Art. 25.
5. Part 2 of this article establishes that the termination of criminal prosecution of a person in a criminal case for a crime of a different category if the person actively repents of the crime committed is carried out by the court, as well as by the investigator with the consent of the head of the investigation department and by the investigator with the consent of the prosecutor only in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation. Crimes of a different category than those named in Part 1 of this article are grave and especially grave crimes. The articles of the Criminal Code, which establish liability for some of these crimes, as well as for certain crimes of medium gravity, provide for the possibility of exemption from criminal liability if certain conditions are met, which do not always coincide with those named in Part 1 of Art. 28 Code of Criminal Procedure and Part 1 of Art. 75 of the Criminal Code and do not necessarily mean the presence of actual (moral) repentance. Thus, the release of a hostage at the request of a law enforcement agency may be explained by the fear of dying as a result of the assault, and not by voluntary repentance. In such cases, it would be more correct, in our opinion, to exempt from criminal liability not under Art. 28 of the Code of Criminal Procedure, and on the basis of notes to the relevant articles of the Criminal Code.
6. Termination of criminal prosecution due to active repentance should be distinguished from a pre-trial cooperation agreement. See about this com. to Art. 317.1.
What does judicial practice show under this article?
The principle of active probing in criminal proceedings can be considered in the situation of citizen Ivanenko, who was a member of an organized criminal group.
Grounds for termination of criminal prosecution and cases under the Code of Criminal Procedure of the Russian Federation, Article 212
A group of people took a hostage, the son of an influential businessman, to obtain a ransom. In the gang, Ivanenko acted as an accomplice. When he saw how his comrades were tormenting the hostage, he began to regret the crime he had committed and, secretly from them, released the boy, and he himself went to the police to surrender.
Investigators accepted the confession and drew up the relevant documents. During the proceedings, Ivanenko constantly assisted the investigation, and also betrayed all his comrades in criminal activities.
Such actions were perceived by the court as sincere repentance, and the attacker was released from punishment, since his role in the crime was insignificant. In addition, this was the first time he had been prosecuted for violating the law and the prosecution (the son of a businessman and father) had no complaints against him.
What decisions are most often made under Article 28 of the Code of Criminal Procedure?
Active repentance has been debated for decades. Some legal scholars believe that the active actions of the perpetrator do not always indicate his regret. Sometimes compensation for damage and assistance to the investigation is carried out by the criminal not out of repentance, but only out of fear of the upcoming punishment.
Actions that are carried out under the influence of this feeling can hardly be called regret; accordingly, they are unlikely to lead to correction.
Although the regulations state that each of the active actions described in Article 75 of the Criminal Code of the Russian Federation may be grounds for a reduced sentence, the judge determines active repentance if there are at least two grounds.
That is, if there is only a confession, then this will soften the sentence, but when there was a confession, full compensation for damage and making amends for the moral damage received from the crime, then this really looks like regret.
The imperfection of the rules governing release from liability due to repentance, in most cases leads to an incorrect interpretation of the actions of the offender. And those who are truly sorry are deprived of their freedom, and those who are not concerned about the condition of the victim are released.
Criminal legal meaning of repentance
In Russian criminal law, dative repentance has subjective and objective sides:
- the subjective side consists in the presence of certain feelings and emotions in a person, which he expresses in active, useful actions;
- the objective side is based on the actions themselves, on the method of their implementation and type.
Release of persons from liability due to repentance is a practical application of the principles of justice, objectivity, humanism and comprehensiveness of the work of law enforcement agencies.
The socially useful behavior of the subject after committing a crime in itself indicates that the perpetrator has formed a negative attitude towards the committed act. And to correct it, isolation is not needed, just another chance at a normal life in society is enough.
The essence of active repentance is that a person regrets not only verbally, but also does everything to minimize the damage from his illegal act. The social and legal significance of the norm described in Article 28 of the Code of Criminal Procedure is simply enormous. So far, it has not been fully studied and is subject to careful research and analysis as one of the most effective mechanisms for correcting a criminal and restoring justice.
