Reasonableness and Motivation of Decision-Making on Termination of Criminal Prosecution in Connection With Active Repentance

The article considers the grounds for the application of Article 28 of the Criminal Procedure Code of the Russian Federation from the position of validity and motivation of procedural decisions made in this regard. Criteria for differentiation of the bases of the application of Article 25 and Article 28 of this Code are determined, the main of which, according to the authors, is the direction of activity of the person who has committed a crime. The category "active repentance" is analyzed. It is noted that repentance may be considered active and have a legal value only in case when it is directed outward and expressed in positive actions of a person. According to Part 1 of Article 75 of the Criminal Code of the Russian Federation, such positive actions are voluntary surrender, assistance in solving crimes, and damages. An essential feature of these actions is its voluntariness, the validity of which should be verified and evaluated by the subject of decision-making. In cases of an objective impossibility of a complete set of grounds for exemption from criminal liability under Article 28 of the Criminal Procedure Code, the text of the relevant procedural act for its motivation and validity should reflect, firstly, the reasons for the incompleteness of the set of requirements of Part 1 of Article 75 of the Criminal Code, secondly, the justification of the sufficiency of the existing grounds for making a decision, and, thirdly, the statement that a person has lost public danger. If the provisions of Article 75 and Article 76 of the Criminal Code compete, given that the application of each of them entails the same legal effect, the authorized officer may decide to exempt a person from criminal liability, specifying both grounds in the text of the relevant procedural act. The article argues that the termination of criminal prosecution is possible only after the indictment. The very formulation of the question of the termination of criminal prosecution and exemption from criminal liability in this regard is possible if, and only if, there is evidence of the criminal event itself, and the guilt of the person in its commission, and all the circumstances associated with them are established reliably to the same extent as is typical for the end of the preliminary investigation. It is concluded that, for exemption from criminal liability under Article 28 of the Criminal Procedure Code, the text of the relevant procedural act (to motivate and substantiate it) should reflect the totality of the requirements of Part 1 of Article 75 of the Criminal Code or reasons for their incompleteness and a rationale of sufficiency of the available data to conclude about a person's loss of public danger.

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