Commentary to Art. 76 Criminal Code
1. Exemption from criminal liability in connection with reconciliation with the victim is possible only if the following conditions are met: the act must be committed for the first time; mild or moderate severity; the accused or suspect is obliged to make amends for the harm caused by the crime and reconcile with the victim.
2. For the first two conditions, see the commentary to Art. 75 of the Criminal Code.
3. Depending on what kind of harm is caused (moral, material or physical), making amends for the harm can be expressed in different forms. If harm is caused:
- moral, then, as a rule, it is enough to make amends for it with sincere repentance for what was done and a request to the victim to forgive the criminal act committed. However, sometimes this is not enough, and the victim is satisfied only with a public apology from the perpetrator, made in a certain form for a wide range of people;
- material, then it is smoothed out by real compensation in monetary or other form (for example, by repairing a damaged item, providing another item in place of the damaged one, etc.);
- physical, then the harm can be mitigated by providing various types of medical services to the victim at the expense of the perpetrator, but is often compensated through monetary compensation, the amount of which is determined by agreement between the victim and the person who committed the crime.
4. Only all four conditions together form the basis for releasing the person who committed the crime from criminal liability due to his reconciliation with the victim. It refers to the inappropriateness of bringing to criminal responsibility the person who committed the crime.
5. Exemption from criminal liability in connection with reconciliation with the victim is optional, and in cases of private prosecution (Part 1 of Article 115, Article 116.1 and Part 1 of Article 128.1 of the Criminal Code of Russia) - mandatory. Courts, when releasing from criminal liability in connection with reconciliation with the victim in cases of private prosecution, are often guided by Part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, which does not require for its application that the accused or suspect commit a crime for the first time. However, the basis and conditions for exemption from criminal liability in connection with reconciliation with the victim must be enshrined in the criminal law, therefore, when there is competition in this matter, the criminal law and criminal procedure norms are subject to application. 76 of the Criminal Code.
6. The decision to terminate a criminal case (or to refuse to initiate it) in connection with the reconciliation of the person who committed the crime with the victim may be made by the inquirer, investigator, as well as the court at any time during the trial, up to the removal of the court to the deliberation room for a decision sentence.
7. On exemption from criminal liability on this basis, see also Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability.”
Compensation for damage. Deadlines. Confirmation
The content of the concept of damage caused to the budget system of the Russian Federation is disclosed in Part 2 of Art. 28.1 of the Code of Criminal Procedure of the Russian Federation, which states the following:
“ Compensation for damage caused to the budget system of the Russian Federation means payment in full of arrears, penalties and fines in the amount determined in accordance with the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against accidents at work and occupational diseases, taking into account the calculation of the amount of penalties and fines presented by the tax authority or the territorial body of the insurer.”
The content of the concept of damage caused to the budgetary system of the Russian Federation is also disclosed in paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2016 N 48 “On the practice of application by courts of legislation regulating the specifics of criminal liability for crimes in the field of business and other economic activities,” which indicates following:
“Based on the interrelated provisions of part 1 of article 76.1, paragraph 3 of notes to article 198, paragraph 2 of notes to article 199, paragraph 2 of notes to article 199.1, paragraph 2 of notes to article 199.3, paragraph 2 of notes to article 199.4 of the Criminal Code of the Russian Federation and parts 1, 2 of Article 28.1 of the Criminal Procedure Code of the Russian Federation, compensation for damage caused to the budget system of the Russian Federation as a result of a crime provided for in Articles 198 - 199.1, 199.3, 199.4 of the Criminal Code of the Russian Federation should be understood as payment in full before the appointment by the court of first instance of a hearing of arrears, penalties and fines in the amount determined in accordance with the legislation of the Russian Federation on taxes and fees and (or) the legislation of the Russian Federation on compulsory social insurance against industrial accidents and occupational diseases, taking into account the calculation of the amount of penalties and fines presented by the tax authority or territorial body of the insurer.”
The court, as well as the investigator, with the consent of the head of the investigative body, terminates criminal prosecution against a person suspected or accused of committing a crime under Articles 198 - 199.1, 199.3, 199.4 of the Criminal Procedure Code of the Russian Federation, if there are grounds provided for in Articles 24 and 27 of the Criminal Procedure Code of the Russian Federation or part one Article 76.1 of the Criminal Code of the Russian Federation, if, before the appointment of a court hearing, the damage caused to the budget system of the Russian Federation as a result of a crime is compensated in full (Part 1 of Article 28.1 of the Criminal Procedure Code of the Russian Federation).
Full compensation for damages made after the court of first instance appointed a hearing, in accordance with paragraph “k” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation is recognized by the court as a circumstance mitigating punishment. Based on Part 2 of Art. 61 of the Criminal Code of the Russian Federation, partial compensation for damage caused by a crime can also be recognized as such.
Based on the provisions of paragraph 1 of Article 45 of the Tax Code of the Russian Federation on the possibility of fulfilling the taxpayer’s obligation to pay tax by another person for the purposes of applying Part 1 of Article 76.1 of the Criminal Code of the Russian Federation, full compensation for damage caused to the budget system of the Russian Federation can be confirmed by documents certifying the fact of transfer to the budget system RF accrued amounts against the debt of a taxpayer - an organization or an individual (for example, a payment order or a receipt with a bank mark). The court is not deprived of the opportunity to verify this fact.
In cases where a person who has committed a crime does not perform all or not in full the actions provided for in Article 76.1 of the Criminal Code of the Russian Federation, his petition to terminate criminal prosecution on the grounds provided for in Articles 75 or 76.2 of the Criminal Code of the Russian Federation may be satisfied by the court, provided that the provisions contained in the specified norms of requirements (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 15, 2016 N 48).
Second commentary to Art. 76 of the Criminal Code of the Russian Federation
1. The commented article provides for an optional type of exemption from criminal liability, the use of which is possible under two formal conditions that have the same content as Art. 75 of the Criminal Code, and a material basis: reconciliation with the victim and making amends for the harm.
2. If the crime caused harm to several victims, the perpetrator must reconcile with each of the victims.
3. Reparations for harm involve compensation for damage, as well as other measures aimed at restoring the rights and legitimate interests of the victim violated as a result of the crime. In this case, the methods of making amends, as well as the amount of compensation for harm, are determined by the victim himself.
Determining the amount of harm caused
The amount of damage to be compensated is determined on the basis of civil contracts, primary accounting documents, statements (certificates) of current accounts, information on transactions using electronic means of payment, etc. If necessary, to determine the amount of damage to be compensated, a forensic examination may be appointed (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 15, 2016 N 48).
For the purposes of monetary compensation, income is recognized as the total amount of illegal enrichment received as a result of the commission of a crime (without deduction of expenses incurred), in cash (cash, non-cash and electronic funds in rubles and (or) in foreign currency) and (or) in kind (movable and immovable property, property rights, documentary and uncertificated securities, etc.).
Accomplices to crimes under Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation bear joint liability for damage caused
In cases of crimes specified in Part 2 of Article 76.1 of the Criminal Code of the Russian Federation, committed by a group of persons bearing joint liability for damage caused by joint criminal actions, the court terminates criminal prosecution against all accomplices in the crime if all the requirements of this norm for compensation for damage and other payments have been made in full by at least one of them.
Third commentary to Article 76 of the Criminal Code of the Russian Federation
1. According to the current criminal law, reconciliation with the victim is considered as one of the independent types of exemption from criminal liability (Article 76 of the Criminal Code). To apply this article of the Criminal Code, four conditions are required, two of which are identical to those considered in relation to Part 1 of Art. 75 of the Criminal Code.
2. Firstly, the crime must be committed by the offender for the first time. Secondly, the committed act belongs to the category of crimes of minor or medium gravity (parts 2, 3 of Article 15 of the Criminal Code). Thirdly, there must be reconciliation between the person who committed the crime and the victim. Reconciliation means refusing a request to bring the perpetrator to justice or a request to terminate the criminal case initiated at his request. The fact of reconciliation must be documented in the appropriate procedural protocol. Fourthly, the person who committed the crime must make amends for the harm caused to the victim.
3. The listed conditions together form the grounds for releasing the person who committed the crime from criminal liability in connection with reconciliation with the victim.
4. The decision to terminate a criminal case (or refusal to initiate it) in connection with the reconciliation of the person who committed the crime with the victim can be made by the body of inquiry or the investigator with the consent of the prosecutor, as well as by the prosecutor at any stage of the pre-investigation check or preliminary investigation, or by the court ( judge) at any time during the trial, but before the court (judge) leaves the deliberation room to pronounce a verdict.
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Who has the right to compensate for damage?
Compensation for damage and (or) monetary compensation provided for in Article 76.1 of the Criminal Code of the Russian Federation can be made not only by the person who committed the crime, but also at his request (with his consent) by other persons. In the event of the commission of crimes provided for in Articles 199 and 199.1 of the Criminal Code of the Russian Federation, compensation for damage is also allowed by the organization whose evasion of taxes, fees, insurance premiums or failure to fulfill the duties of a tax agent is charged to the person (clause 2 of the notes to Article 199, clause 2 of the notes to Article 199.1 Criminal Code of the Russian Federation) (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2016 N 48).
Promises, as well as various kinds of obligations of the person who committed the crime, to compensate for damage and transfer monetary compensation to the federal budget in the future, are not circumstances giving rise to the release of this person from criminal liability (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2016 N 48; clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 26, 2019 N 48).
Procedure for terminating criminal prosecution
The procedural procedure for terminating criminal prosecution in cases of crimes in the sphere of economic activity is provided for in Art. 28.1 Code of Criminal Procedure of the Russian Federation.
If the court of first instance, in the presence of grounds provided for in Article 76.1 of the Criminal Code of the Russian Federation, did not terminate the criminal case and (or) criminal prosecution, then in accordance with Art. 389.21 of the Code of Criminal Procedure of the Russian Federation, the appellate court overturns the conviction and terminates the criminal case and (or) criminal prosecution.
A decision to terminate a criminal case and (or) criminal prosecution on the grounds provided for in Article 76.1 of the Criminal Code of the Russian Federation can be made by a court of first instance or appellate instance only if the defendant (convicted) does not object to this. According to the meaning of the law, if the defendant (convict) has such objections, the court continues to consider the case and pronounces an acquittal or a conviction with the release of the convicted person from punishment (Part 2 of Article 27, Part 8 of Article 302 of the Code of Criminal Procedure of the Russian Federation).
Conditions for exemption from criminal liability under Part 3 of Art. 76.1 of the Criminal Code of the Russian Federation
Part 3 of Article 76.1 of the Criminal Code of the Russian Federation provides for an independent temporary basis for exemption from criminal liability, associated with the only condition for release - filing a declaration in accordance with Federal Law of June 8, 2015 N 140-FZ “On the voluntary declaration by individuals of assets and accounts (deposits)” in banks and on amendments to certain legislative acts of the Russian Federation.”
The conditions for exemption from criminal liability under Part 3 of Article 76.1 of the Criminal Code of the Russian Federation include:
- identification of the fact that before January 1, 2015 or before January 1, 2019, the declarant or a person about whom information is contained in the declaration committed acts containing elements of certain crimes in the field of economic activity. The provisions of Part 3 of Article 76.1 of the Criminal Code of the Russian Federation do not apply to a person who committed the corresponding crime after the specified date. At the same time, Parts 1 and 2 of this article may be applied to such persons if the person fulfills the conditions provided for in these parts;
- the crimes committed must be related to: a) the acquisition (formation of sources of acquisition) of property, for example, real estate, securities, including shares, as well as participation interests and shares in the authorized (share) capital of Russian and (or) foreign organizations; b) with the use or disposal of property and (or) controlled foreign companies; c) with the opening and (or) crediting of funds to accounts (deposits). Information about the listed actions, as well as property and (or) accounts (deposits), as well as controlled foreign companies must be contained in the declaration.
