Release from criminal liability in Russia and Germany: common trends and national peculiarities.

Serenko Roman Sergeevich ORCID: 0000-0002-7667-6918 Lecturer; Department of Criminal Law; Southwestern State University 305040, Russia, Kursk region, Kursk, ul. 50 let Oktyabrya, 94, room 710 romanserenko@bk.ru Other publications by this author

Modern criminal law is in the process of constant transformation, reflecting changes in social values and legal awareness. In this context, the institution of exemption from criminal liability acquires special importance, representing an important mechanism for humanizing criminal policy and optimizing law enforcement practice.

The institution of exemption from criminal liability acts as an important tool for differentiating criminal law effects, and also reflects not only the peculiarities of national legal understanding, but also the general trends of criminal policy aimed at minimizing repressive interference in cases where the goals of criminal law can be achieved by other means ^[1]. This study is aimed at conducting a comparative study of the regulation of the institution of exemption from criminal liability in the legislation of Russia and Germany. Thus, it should be noted that the criminal legislation of the Russian Federation and the Federal Republic of Germany have both similar approaches to regulating the institution of exemption from criminal liability, for example, in the issue of taking into account active repentance and reconciliation with the victim, and a number of significant distinguishing features, largely due to the peculiarities of legal systems.

The institute of exemption from criminal liability has traditionally attracted the attention of researchers both in Russia and in Germany. In the Russian science of criminal law, fundamental developments on this issue belong to S.G. Kelina, who researched the theoretical foundations of this institute. A.I. Rarog made a significant contribution to the study of issues of responsibility differentiation. The problems of active repentance as a basis for exemption from responsibility are deeply analyzed in the works of A.I. Chuchaev. Comparative legal aspects were considered by A.I. Boyko, and the issues of humanization of criminal law by N.F. Kuznetsova.

In German legal doctrine, the fundamental research of the institute of exemption from liability is associated with the names of Klaus Roksin, who studied the theory of criminal law, Gunther Artz, who analyzed the material grounds for exemption, and Bernd Schunemann, who studied the procedural aspects of the application.

However, despite the existence of a significant number of scientific papers on certain aspects of the problem, a comprehensive comparative study of the institution of exemption from criminal liability in Russian and German law, taking into account current trends in its development, remains an urgent scientific task. Its solution is important both for the development of the theory of criminal law and for the improvement of legislation and law enforcement practice.

The present study is aimed at conducting a comprehensive analysis of the institution of exemption from criminal liability in the criminal law of the Russian Federation and the Federal Republic of Germany. The methodological basis of the research is based on the application of a system of complementary methods of scientific cognition. The leading role is played by the comparative legal method, which makes it possible to identify similarities and differences in the regulation of the institution of exemption from criminal liability in the Criminal Code of the Russian Federation and the Criminal Code of Germany. The formal legal method is used to analyze the structure of legal norms and their systemic interpretation. The historical and legal method is used for a retrospective analysis of the evolution of the institution in question in Russian law. The dogmatic method serves as a tool for studying doctrinal approaches to understanding the essence of an institution. The statistical method makes it possible to analyze judicial practice data, and the systematic method makes it possible to consider the institution in the context of modern criminal policy.

Thus, in Russian law, the letter of the law indicates that in the case of a culpable commission of a socially dangerous act prohibited by the Criminal Code of the Russian Federation, a sane individual who has reached the appropriate age, if there are other signs of a crime, is subject to criminal liability and criminal punishment. However, if there are certain circumstances provided for by law, the consequences of committing a crime may be different. In particular, we are talking about exemption from criminal liability, which acts in modern conditions as an independent institution of criminal law ^[2].

In its current form, the institution of exemption from criminal liability was fixed in the current Criminal Code of the Russian Federation from the moment it entered into force, and then, as a result of a number of changes, it was transformed into its current state.

It should be noted that, for the first time in history, a legal act defined exemption from criminal liability as an independent institution within the framework of criminal law, and also, no less importantly, distinguished between exemption from criminal liability and exemption from punishment, which was enshrined in article 48 "Exemption from criminal liability or punishment." The foundations of the criminal legislation of the USSR established a list of grounds for the application of the institution of exemption from criminal liability, some of which were novelties for the criminal law of the state. Thus, these grounds included: exemption from criminal liability with the application of public pressure measures to the perpetrator due to the inexpediency of sentencing; a change in the situation entailing recognition of a person as not posing a public danger; confession, repentance and reparation for the damage caused; expiration of the statute of limitations of the crime; expiration of the statute of limitations for the execution of a sentence; exemption from liability for based on an act of amnesty or pardon.

Later, when developing the new Criminal Code of the RSFSR in 1960, the provisions of the Fundamentals of the Criminal Legislation of the USSR were taken into account, including in terms of legal regulation of exemption from criminal liability and punishment. At the same time, an analysis of the sources of criminal law of the RSFSR makes it possible to establish that, despite a fairly high degree of elaboration of the grounds and procedure for exemption from criminal liability in them, this experience was practically not taken into account when developing the Criminal Code of the Russian Federation, and none of the grounds provided for, for example, by the Criminal Code of the RSFSR were consolidated in the new codified source of criminal law. rights.

Thus, in the current version of the Criminal Code of the Russian Federation, a whole separate chapter is devoted to the analyzed institution – Chapter 11. Exemption from criminal liability, containing articles 75 to 78.1. It should be noted that there have been practically no significant changes in the legal regulation of the institution of exemption from criminal liability since the adoption of the Criminal Code of the Russian Federation in 1996, with the exception of the invalidation of Article 77 of the Criminal Code of the Russian Federation. However, in March 2024, in accordance with the provisions of Federal Law No. 64-FZ of 03/23/2024 "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation", Chapter 11 of the Criminal Code of the Russian Federation was supplemented with Article 78.1, which provides for the grounds and procedure for exemption from criminal liability in connection with conscription. military service or its passage ^[3].

Despite the fact that the institution of exemption from criminal liability in a certain form has existed for almost thirty years, no changes have been made to the Criminal Code of the Russian Federation to this day to consolidate the definition of the concept of "exemption from criminal liability." Of course, there is a resolution adopted on June 27, 2013 by the Plenum of the Supreme Court of the Russian Federation "On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability," in which, explaining its explanation, the competent authority points out that "... exemption from criminal liability is the state's refusal to implement it in relation to the person who committed the crime." (in particular, from the conviction and punishment of such a person)" ^[4]. However, this definition does not fully reflect the whole essence and features of the institution of exemption from criminal liability. Based on this, before the adoption of the said resolution, a number of approaches to the definition of the analyzed concept had already been formed in the doctrine of criminal law, which continued to be formed and supplemented by authors and researchers even after the adoption of the said resolution in view of the constant improvement of scientific thought and the emergence of new views.

In the scientific community, the definition is considered to be the most generalized and accepted by most authors and researchers, according to which exemption from criminal liability is understood as the refusal of a competent authority, namely a court, to convict a person guilty of committing a crime by convicting him, as well as applying to such a person the sanction provided for in the relevant article of the Special parts of the Criminal Code of the Russian Federation ^[5]. While supporting this definition, researchers give it an additional color by expressing their opinion on the essence of the institution of exemption from criminal liability. For example, there is an opinion according to which the essence of the analyzed institution is to release the person guilty of committing a criminal act from the obligation to be responsible for it while maintaining the criminal nature of the act and the very basis for the application of criminal liability ^[6]. Generalizing here is the opinion expressed after the adoption of the previously mentioned resolution of the Plenum of the Supreme Court of the Russian Federation, according to which Exemption from criminal liability is "getting rid of the need, the obligation to endure the negative consequences associated with the commission of a crime" ^[7].

It should be noted that the use of the analyzed institution, which frees the perpetrator from coercive influence by the state, does not violate the principle of the inevitability of punishment, as it may seem at first glance, since it does not consolidate the application of sanctions provided for in the relevant article of the Criminal Code of the Russian Federation as a necessary consequence of a criminal act, but only requires that no such act It was not ignored by law enforcement agencies and was also disclosed and made public, condemned by society and the state ^[8].

Thus, accumulating all of the above, it should be stated that the most constructive, reflecting most of the features of the institution in question, is the definition according to which exemption from criminal liability is a refusal by a court or other competent authority or official to convict a person guilty of committing a socially dangerous act, formally containing all the elements of a crime, in the form of the conviction of such a person, without excluding censure by the State of both the said act and the person who committed it.

As already noted, the Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 19 dated 06/27/2013, considered this issue, but did not propose its exhaustive resolution. In particular, in the context of Articles 75, 76, 76.1, 76.2 of the Criminal Code of the Russian Federation, judicial practice adheres to the position that a person who has committed a crime for the first time may also be recognized as a person who has previously been released from criminal liability ^[9].

It should be emphasized that the essence of the institution of exemption from criminal liability reflects the concept laid down by the legislator of stimulating the perpetrator to lawful behavior after the fact of committing a crime. The current state of this institution is characterized by a combination of imperative and dispositive elements. As already mentioned, a separate chapter is devoted to it in the Criminal Code of the Russian Federation, and each of the norms contained therein regulates the application of a specific ground for exemption from criminal liability, while possessing either a predominantly dispositive or imperative character with separate elements of dispositivity ^[10].

Thus, the dispositive nature is inherent in the grounds provided for in Articles 75, 76 and 76.2 of the Criminal Code of the Russian Federation. This is manifested in the presence of the competent authorities (the court, the prosecutor, the investigator, the body of inquiry with the consent of the prosecutor) discretionary powers in assessing the appropriateness of the application of relevant standards. The limits of this discretion are determined by the specific conditions of release: the authorized bodies, analyzing the actual circumstances of the case, establish the presence or absence of criteria stipulated by law (for example, voluntary surrender, the degree of reparation, etc.), after which they make an independent decision on the possibility of releasing a person from criminal liability ^[11].

In contrast, the grounds set out in Articles 76.1, 78 and 78.1 of the Criminal Code of the Russian Federation are imperative, obliging the law enforcement officer to release the perpetrator in the presence of formal conditions without additional assessment of expediency.

The doctrine of criminal law justifiably asserts that the institution of exemption from criminal liability (or at least most of its forms provided for in the Criminal Code of the Russian Federation) is based on the idea of compromise. Its essence is to provide the perpetrator with the opportunity to avoid criminal prosecution or mitigate punishment in exchange for committing certain actions by the legislator. This approach helps to increase the social effectiveness of criminal law regulation ^[12].

The question of whether the institution of exemption from criminal liability should be dispositive with the possibility of discretion or imperative, that is, mandatory, is one of the most relevant and controversial in modern criminal law science. Proponents of dispositivity, such as N.F. Kuznetsova, emphasize the importance of giving law enforcement agencies flexibility in applying the institution of exemption from criminal liability. They point out that each situation is unique and requires an individual approach that can take into account not only the circumstances of the crime, but also the personal characteristics of the offender. The dispositive approach allows us to take into account such factors as the degree of remorse, the desire to make amends for the harm caused, as well as the social conditions and environment of the offender. This can contribute to more effective socialization and reduce the risk of recidivism, which is one of the goals of criminal justice.

On the other hand, adherents of the imperative approach, for example, A.I. Chuchaev, argue that the application of strict norms and mandatory grounds for exemption from criminal liability contributes to greater predictability of law enforcement practice. They argue that clear and binding rules ensure the protection of public interests, minimizing the risk of arbitrary application of criminal legislation. The imperative approach helps to create confidence that all offenders will be treated equally in accordance with established norms, which, in turn, contributes to maintaining public order and confidence in the legal system.

However, despite the advantages, both approaches have their drawbacks. A dispositive approach can lead to arbitrariness on the part of law enforcement agencies, when decisions on the application of exemption from liability will depend on the personal views and bias of individual law enforcement officers. This can cause public discontent and undermine confidence in the justice system. On the other hand, an imperative approach may be too harsh and fail to take into account the individual circumstances of each case, which may lead to unfair punishments and hinder the rehabilitation of offenders.

However, in our opinion, the procedure for exemption from criminal liability often depends on the discretion of judges and prosecutors, which can lead to uneven application of the institution and its dependence on the personal views of law enforcement officers, and therefore it seems more appropriate to make the institution of exemption from criminal liability more imperative.

Turning to the analysis of the institution of exemption from criminal liability in Germany, it should be noted that it occupies a special place in the criminal law system, representing a complex, multifaceted legal phenomenon. Thus, in the criminal law doctrine of Germany, there are also several approaches to determining the essence of the institution under analysis. One of the most popular is the definition according to which exemption from criminal liability is a legal mechanism that allows, if there are legally established grounds, to avoid the negative consequences of criminal prosecution, while maintaining the criminal nature of the committed act ^[13].

This definition is one of the most popular due to the reflection in it of several fundamental characteristics of the analyzed institution, including:

1. Preservation of the criminal nature of the act. That is, unlike the circumstances that exclude criminality, exemption from liability does not eliminate the illegality of the act, but only releases from punishment. This is generally similar to the situation in the framework of the institution of exemption from criminal liability in domestic criminal law.;

2. The legality of the grounds. This implies that the possibility of exemption from criminal liability is strictly regulated by the norms of criminal and criminal procedure law.;

3. Preventive nature. It assumes the orientation of the institution of exemption from criminal liability to prevent the negative social consequences of criminal prosecution ^[14].

In addition, the German criminal law doctrine pays attention to the issue of the dual nature of the institution of exemption from criminal liability, which performs both humanitarian and criminological functions. From the point of view of humanizing criminal policy, this institution makes it possible to minimize the negative consequences of criminal prosecution for persons who have committed crimes of a low degree of public danger. It promotes their re-socialization, creating conditions for a return to a law-abiding life, while ensuring the rational use of law enforcement system resources by reducing excessive criminal prosecutions.

In the criminological aspect, the institution in question performs important functions of differentiating criminal responsibility. It allows law enforcement agencies to focus their efforts on countering the most dangerous forms of crime, while providing flexibility in criminal law enforcement. In addition, by creating a system of incentives for the voluntary cessation of illegal activities and making amends for the harm caused, this institution contributes to the prevention of recidivism and the formation of law-abiding behavior ^[15].

In general, it is important to note that the institution of exemption from criminal liability in the law of the Federal Republic of Germany is a complex mechanism combining substantive and procedural norms ^[15]. Its regulation is mainly carried out by the German Criminal Code and the German Code of Criminal Procedure.

In itself, exemption from criminal liability in German law may be due to the absence of grounds for prosecution or the presence of special rules that exclude the criminality of an act. The key substantive grounds include:

1. The absence of corpus delicti provided for in Section 13 of the German Criminal Code. It occurs in cases where the act does not contain signs of illegality or public danger, the question of responsibility does not arise.;

2. Necessary defense, stipulated by § 32 of the Criminal Code of the Federal Republic of Germany and extreme necessity – § 34 of the Criminal Code of the Federal Republic of Germany. These circumstances regulate the circumstances that exclude the illegality of acts aimed at protecting legitimate interests.;

3. Voluntary renunciation of a crime, the procedure for which is regulated by Section 24 of the Criminal Code of the Federal Republic of Germany. In accordance with this rule, a person who voluntarily stopped criminal activity or prevented the occurrence of consequences is released from liability.;

4. Insanity provided for in Section 20 of the Criminal Code of the Federal Republic of Germany. This norm provides for the inadmissibility of criminal prosecution of persons who are unable to realize the illegality of their actions due to a mental disorder ^[16].

In general, it should be noted that German legislation provides for an extensive system of grounds for exemption from criminal liability. This approach reflects the legislator's desire to differentiate the criminal law impact and minimize unjustified state interference in cases where the goals of justice can be achieved by other means ^[17].

Before proceeding to conclusions, it is necessary to refer to statistical data that more clearly demonstrate the effectiveness of the institution of exemption from criminal liability and the expediency of its wider application in domestic practice. So, if we turn to the analysis of the level of application of the institution of exemption from criminal liability, then in Germany, according to the currently available data from the Federal Statistical Office, in recent years there has been a steady increase in cases of application of exemption from criminal liability. In 2023, this figure amounted to about 15% of the total number of cases considered by the courts of first instance, which indicates a high level of confidence in the mechanisms of humanization of criminal justice.

At the same time, in domestic practice, according to the Prosecutor General's Office, the number of cases in which measures of exemption from criminal liability are applied is about 5-7% of the total number of criminal cases. This indicates a significant potential for increasing the use of this institution in order to humanize criminal legislation.

Paying attention to the indicators of recidivism, it should be noted that according to the Federal Criminal Department of Germany, the level of recidivism in the country has been showing steady dynamics over the past ten years. In 2023, about 1.3 million crimes were registered, of which about 30% were committed by repeat offenders. This indicates that one third of crimes in the country are committed by people with previous criminal records. In addition, the rate of recidivism in Germany has varied in recent years, but there has been a general downward trend. In 2019, the percentage of repeat offenders among all convicts was 37%, which is 4% higher than in 2023. This may be due to improved rehabilitation and social integration programs, as well as increased public attention to crime prevention issues.

In Russia, the rate of recidivism is in the range of 30-37%. This highlights the need to improve the mechanisms of re-socialization and the use of alternative criminal prosecution measures. It should also be noted here that in 2013 the total number of convicts in the country was 735,340, in 2014 – 719,297, in 2015 – 734,581, in 2016 – 741,329, in 2017 – 697,054, in 2018 – 698,291, in 2019 - 598,207, in 2020 – 530,998, 2021 – 562 089, 2022 – 578 774, 2023 – 555 742. At the same time, if we take statistics for the same years on the number of convicts who had previous convictions and had an outstanding or outstanding criminal record at the time of their conviction, the situation looks like this: in 2013, the number of such convicts was 250,245, in 2014 – 241,764, 2015 – 234,543, 2016 2012 – 221,578, 2017 – 224,107, 2018 – 231,582, 2019 – 221,929, 2020 – 204,790, 2021 – 212,633, 2022 – 214,143, 2023 – 207,513. Analysis of the statistical data provided allows us to establish that in 2013 the proportion of persons at the time of sentencing, those with an outstanding or outstanding criminal record accounted for 34.03% of the total number of convicts, in 2014 – 33.61%, in 2015 – 31.93%, in 2016 – 29.89%, in 2017 - 32.15%, in 2018 - 33.16%, in 2019 - 37.1%, in 2020 2018 – 38.57%, 2021 – 37.83%, 2022 – 37%, 2023 – 37.34% ^[18].

If we turn to the indicators of recidivism among persons for whom the institution of exemption from criminal liability was previously applied, then in Germany the rate of recidivism among persons released from criminal liability is about 10%, which, as can be seen from the above, is significantly lower than the national average. This indicates the high efficiency of the rehabilitation of these offenders.

In Russia, in turn, according to the Ministry of Justice of the Russian Federation and the Federal Penitentiary Service, in 2023, about 14% of convicts who were released from criminal liability committed crimes again within the first two years after their release. This indicates a significant level of recidivism among this category of people. At the same time, the study of the dynamics of this indicator indicates that the level of recidivism among persons released from criminal liability does not remain stable, but shows an increase. For example, in 2021, this figure was 12%, which indicates an increase. The main causes of relapse include insufficient social adaptation, lack of access to necessary resources, and the presence of psychological problems.

Summarizing all of the above, it should be emphasized that the institution of exemption from criminal liability both in domestic criminal law and in the criminal law of the Federal Republic of Germany is a complex and multidimensional legal mechanism. In the context of the current trend towards the humanization of criminal law policy, observed in general in most countries of the world, and in the states we analyze in particular, this institution acquires special importance as an optimal tool to minimize the use of punitive measures without violating the basic principles of criminal law ^[19].

Among other things, it is important to note that empirical evidence suggests that in certain cases, exemption from criminal liability contributes to a more successful re-socialization of offenders, which in the long term may contribute to reducing the rate of recidivism. Thus, further improvement of this legal institution seems to be a promising direction for the development of criminal law doctrine ^[20].

The above-mentioned study of the institution of exemption from criminal liability in the legislation of the Russian Federation and the Federal Republic of Germany allows us to conclude that there are both common trends in their development and regulation, as well as significant differences. The analyzed institution is becoming particularly important in modern conditions due to the desire of most states to humanize criminal policy. This is due to the fact that the institution of exemption from criminal liability is an effective tool that helps minimize the repressive effect on the offender, without violating such principles as justice and the inevitability of responsibility ^[21].

Based on all of the above, it can be argued that the institution of exemption from criminal liability in the laws of the Russian Federation and the Federal Republic of Germany has both similar features and significant differences. So, speaking about similar features, it should be noted that in both legal systems, exemption from criminal liability is considered as an alternative to traditional punishment, contributing to the re-socialization of offenders, there are similarities in approaches to such grounds as active repentance, reconciliation with the victim and the expiration of the statute of limitations, and in both states, the institution performs a criminological function, reducing the burden on the law enforcement system and contributing to the prevention of recidivism.

As for the main differences in the framework of regulating the institution of exemption from criminal liability in the laws of the States under consideration, in the criminal law of the Russian Federation, the essence of this institution and the procedure for its application are governed primarily by the norms of substantive law and are characterized by a dispositive-imperative nature, which gives the law enforcement officer the opportunity to act to a certain extent at his discretion, while in Germany, the institution Exemption from criminal liability is regulated by both substantive and procedural rules, which contributes to its more flexible application.

The prospects for improving the institution of exemption from criminal liability in the Russian Federation require a comprehensive scientific understanding, taking into account current trends in the development of criminal policy. The analysis of domestic and foreign legislation, and in particular, the German experience in regulating the institution of exemption from criminal liability analyzed in the framework of this study, allows us to identify key areas of modernization of this legal institution.

In particular, the comparative legal analysis indicates the need to expand the dispositive principles in regulating exemption from criminal liability. The German experience demonstrates the effectiveness of conditional termination mechanisms for criminal prosecution.

Attention should also be paid to the differentiation of grounds for exemption from criminal liability depending on the categories of crimes, which requires in-depth criminological substantiation. Scientific analysis should take into account both the degree of public danger of the act and the personal characteristics of the offender. The improvement of the relevant norms of the Criminal Code of the Russian Federation should be based on the principle of proportionality of criminal legal impact.

The prospects for further scientific research of the issue under consideration may be related to the development of a concept for optimizing the institution of exemption from criminal liability in the context of modern criminal policy challenges. The issue of finding a balance between the humanization of criminal law and the need to ensure the principle of the inevitability of responsibility deserves special attention. The theoretical significance of this issue is due to its direct connection with the fundamental principles of criminal law.

At the same time, returning to the state of affairs in the framework of the issue under consideration in domestic law, it should be noted that the current grounds for exemption from criminal liability in Russia do not always take into account the individual circumstances of cases. This can lead to unjustified application of criminal sanctions, as well as to insufficient flexibility in approaches to offenders. In addition, the institution of exemption from criminal liability does not always contribute to the successful re-socialization of offenders in Russia. The high rate of recidivism indicates the need to improve support and assistance mechanisms for persons released from criminal liability. In general, it is important to note that in Russian criminal practice there is a tendency to use punitive measures, which contradicts the trends of humanization of criminal law. This creates obstacles to the wider use of the institution of exemption from criminal liability.

Thus, the advantages of taking into account the experience of regulating the institution of exemption from criminal liability in Germany in future possible changes within the framework of the domestic regulatory mechanism of this institution include:

1. The German experience can become the basis for further humanization of Russian criminal legislation. The introduction of more flexible mechanisms for exemption from criminal liability will reduce the level of repressive pressure on offenders and create conditions for their successful re-socialization.;

2. Germany demonstrates the successful application of differentiated approaches to exemption from criminal liability, which allows taking into account the individual circumstances of each case. Russia could adapt such approaches to ensure fairer and more adequate criminal justice.;

3. Successful German practices demonstrate that exemption from criminal liability can become an effective tool for the prevention of recidivism. The use of measures such as active repentance and reconciliation with the victim could help reduce the rate of recidivism in Russia.

Summarizing all of the above, it should be noted that the institution of exemption from criminal liability is an important element of the modern criminal law system, reflecting the balance between the punitive and restorative functions of law. A comparative analysis of Russian and German legislation demonstrates that the further development of this institution should be based on the principles of differentiation of responsibility, humanization and effectiveness of law enforcement. Taking into account foreign experience, in particular the German model, can help optimize domestic criminal law in the context of global trends towards decriminalization and the search for alternatives to punishment.