The criminal law policy of Russia in recent years has been characterized by a liberal orientation towards persons who have committed crimes of small and medium gravity for the first time. Evidence of this, as we see it, is the adoption of the Federal Law of July 3, 2016 No. 323-FZ "On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation on Improving the Grounds and Procedure for Exemption from Criminal Liability" included art. 762 "Exemption from criminal liability in connection with the appointment of a court fine" and chapter 152, which provides for Art. 1044 "Judicial fine" and Art. 1045 "Procedure for determining the amount of a court fine."[1] This release can be called a new phenomenon for Russian criminal law, since when a person is released from criminal liability, the court imposes a fine, which the legislator named judicial. Before starting to consider the issue of establishing a new type of exemption, I would like to note the inaccuracy of the legislative wording - it would be preferable to reflect in the title the additions to the Criminal Code, rather than position this act as its change. Currently, there is an increase in the number of persons exempted from criminal liability with the appointment of a fine, so in 2017 it was applied to 20,639 persons, in 2018 - 33,329, and in 2019 - 522,461 persons.[2]   

The modernization of criminal legislation sometimes creates additional difficulties in the interpretation and application of its norms. Evidence of this, as we think, is the changes that have appeared in the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation. The name of the Federal Law dated July 3, 2016. No. 323-FZ contains an indication that it was adopted to improve the grounds and procedure for exemption from criminal liability, and it raises a lot of questions, doubts about the legal basis for exemption from criminal liability with the appointment of a court fine, the provisions underlying its application, correlation with other types of release, as well as the ratio of a judicial fine with a criminal penalty in the form of a fine.

 The scientific literature discusses the problem of the nature of liability in the application of a court fine. This is due to the fact that articles about him are located in different chapters.

The question is, what kind of responsibility does he express? A person is released from criminal liability in these cases. What, then, is the nature of a judicial fine (as well as of any criminal legal establishment), if it cannot be compared with a more general category, in this case with responsibility. It is unlikely that anyone would take the liberty of claiming that a court fine is regulated by itself and should not be weighed against liability in criminal law. Perhaps the initiators of the above innovation, thereby, provided for a new kind of responsibility?

As you know, by its content, criminal liability in its traditional understanding implies a conviction of a court, that is, a negative assessment of the crime and the perpetrator, when a person is released from serving the sentence assigned to him or when a punishment or other measure of a criminal legal nature is imposed. The appointment of a court fine does not imply the consequences and burdens of criminal liability. When releasing a person from criminal liability, the court does not pass a guilty verdict, but it gives a negative assessment of the crime and the person who committed it. Therefore, when making such decisions, the court has a negative attitude towards the committed crime, and the person is actually found guilty of committing it and on this basis he is assigned a court fine, which cannot but express one or another responsibility. So, Valentia S.I., who had not previously been brought to criminal responsibility, committed a crime of little gravity (part 1 of article 2581). He compensated for the damage caused by depositing funds into the Amur branch of the Federal State Budgetary Institution "Glavrybvod". The court found that the financial situation Valentiya C.AND. allows him to pay a court fine; the damage is compensated and these grounds taken together are sufficient for Valentia S.AND. released from criminal liability with the appointment of a court fine, and there are no circumstances preventing his release. Valentia S.I. the court imposed a court fine in the amount of 10 thousand rubles with payment no later than 60 days from the date of entry into force of the decision.[3]

The concept of “court fine” was not known to the previous criminal legislation. Based on its literal understanding, the content of the court fine consists in the recovery in monetary terms, and the court appoints it, at the same time releasing it from criminal liability. The procedure for filing a petition before the court to release the accused (suspect) from criminal liability with the appointment of a court fine is enshrined in the decision of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013. No. 19 "On the application by the courts of legislation regulating the grounds and procedure for exemption from criminal liability" (as amended by the resolutions of the Plenum of the Supreme Court of the Russian Federation No. 48 dated November 15, 2016, No. 56 dated November 29, 2016), according to which all documents are sent to the court on criminal case together with the decision of the investigator. Note that the petition should describe in detail what crime was committed, provide evidence, the grounds necessary to release such a person from criminal liability, the attitude of the suspect (accused) on the termination of the criminal case and the determination of a court fine for him.

 It is obvious that in the said resolution of the Plenum of the Supreme Court of the Russian Federation, the grounds for exemption from criminal liability under Art. 762 of the Criminal Code of the Russian Federation, that is, much wider than it is established in the law itself.

A person can be released on the grounds of Article 762 of the Criminal Code of the Russian Federation even when his guilt has not been proven. The law does not stipulate the duty of the court to establish guilt, for example, against a suspect. Sufficient information that makes it possible for the court to work out a "final decision" and proof of guilt are different concepts. This is the main difference between exemption from criminal liability with the appointment of a judicial fine from other types of exemption from it. As you know, Art. 75, 76, 761 of the Criminal Code of the Russian Federation contain a specific edition - "the person who first committed a crime ..."; It follows from it that persons convicted of a crime of small or medium gravity, and not suspected of committing a crime, as is allowed in the resolution of the Plenum of the Supreme Court of the Russian Federation, indicated above (paragraph 251), can be exempted from criminal liability.[4]   The Supreme Court of the Russian Federation admits release according to this norm even when the degree of public danger of the perpetrator changes downward, and not only when the person loses this danger.

The legislator established the legal nature of the court fine, determining the place for the placement of Art. 1044, 1045 in section VI of the Criminal Code of the Russian Federation "Other measures of a criminal-legal nature". In accordance with the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation, a judicial fine is an independent measure of a criminal law nature.[5] In the scientific literature, it is also recognized as another criminal law measure and proceeds from the fact that the provisions of Article 46 of the Criminal Code of the Russian Federation do not apply to it. However, the boundaries within which the court imposes a different measure in the form of a fine are established on the basis of the limits of criminal punishment in the form of a fine provided for in the articles of the Special Part of the Criminal Code of the Russian Federation. In Art. 1044 of the Criminal Code of the Russian Federation, one might say, contains a rule for determining the maximum limit of the amount of a judicial fine. And the minimum limit of the court fine exactly corresponds to the size of the criminal fine, that is, five thousand rubles. Therefore, it is obvious that the instructions of Art. 46 of the Criminal Code of the Russian Federation also apply to the provisions on the application of a court fine. If we compare part 3 of article 46 and part 2 of article 1045 of the Criminal Code of the Russian Federation, then the rules underlying the imposition of criminal punishment in the form of a fine and a court fine are the same. With regard to criminal punishment in the form of a fine, the legislator provides for the consequences of cases of malicious evasion of payment. With regard to the court fine, the legislator uses a softer wording - non-payment. So, is its failure to pay a malicious evasion from the payment of a court fine? Based on the consequences specified in Part 2 of Art. 1044 of the Criminal Code of the Russian Federation, then, in our opinion, in some cases they should be recognized as malicious evasion and this provision should be enshrined in the law. How to distinguish between malicious evasion and non-payment of a fine. It seems that under malicious evasion of payment in accordance with Art. 31 and 32 of the PEC of the Russian Federation, it should be understood cases when the convicted person has money available, and he evades paying this fine. And in case of non-payment of the fine, its reasons may be different, including due to the lack of funds.

 In the Criminal Code of the Russian Federation, Chapter 152 of the Criminal Code of the Russian Federation does not contain an article that would specifically express the position of the legislator in the case of; violation of the requirements of the law by the person who must pay the court fine. For example, during the time during which it is expected to pay a court fine, a person may commit an administrative offense, crimes of various categories of gravity. In our opinion, if a person pays a fine within the period established by the court, then he should be held criminally liable only for a newly committed crime.

  Of practical importance is the question of how many times a person who has committed a crime can be exempted from criminal liability with the appointment of a different measure in the form of a fine? In our opinion, on the one hand, if there are grounds for such a release, there should be no obstacles, and on the other hand, the question arises - how to assess the social danger of such a person. In our opinion, it rises significantly and, therefore, the release by the court of such a person should be decided individually in each case.

There is no doubt that a judicial fine is not a punishment, it cannot also be considered as a type of criminal punishment in the form of a fine (Art.46 of the Criminal Code of the Russian Federation), as well as itself appointed or, for example, established when the court applies other types of exemption from criminal liability.

Discussed is the problem of delimiting real punishments, including a criminal fine from a court fine; in what cases should a, say, a criminal fine be imposed, and in what situations - a court fine?

The so-called “released” from criminal liability actually undergoes punitive legal restrictions typical of a criminal fine.

The question is, what were the goals pursued by the initiators of the introduction of Article 762 into the Criminal Code of the Russian Federation? It is not possible to give a concrete answer to it, since other types of exemption from criminal liability are enshrined in the criminal law (Articles 75, 76, 761), in some part the grounds for their application coincide.

This decision shows the desire of the legislator to reduce the burden on the investigating authorities, so to speak, to "facilitate" the administration of justice, including the use of criminal law measures on the basis of suspicion of a crime.[6] According to A.V. Piuk, in some states (Belgium, Israel) the decision to impose a fine is made without the participation of a court, and this approach has a certain usefulness; the perpetrator of a crime is given a choice: either to agree with the conclusion of the prosecutor, or to insist on the transfer of his case to court. The judge is often unable to establish the real picture due to the large amount of work.[7]

Therefore, in the literature, the question is recognized as legitimate - is not this type of release a veiled way of evading the guilty from responsibility. A.P. Ryzhikov notes that the bodies of the preliminary investigation can terminate a criminal case if there is insufficient evidence for a conviction by the court.[8]

Doubts also arise in the very formulation of the question - can a person who committed a crime be recognized as exempted from criminal liability in the conditions of a court fine applied to him as another measure of a criminal-legal nature, the content of which is characterized by the implementation of the corresponding legal restrictions. At least, the answer to it cannot be unambiguous. If we approach it formally, then we proceed from the recognition of this type of exemption from criminal liability as conditional, and the test (method) is the payment of a court fine. In fact, in both cases, we proceed from responsibility - in one case, it is implemented when a court fine is imposed, and in the other, in accordance with the sanction of the norm of the article of the Special Part of the Criminal Code of the Russian Federation.

Doubts also arise about the legislator's understanding of the grounds for exemption from criminal liability with the appointment of a court fine. The provisions of the Criminal Code of the Russian Federation, which are essentially fundamental, stipulate that a person who has lost his public danger is subject to release from criminal liability for a committed socially dangerous act. And since the type of release under consideration is accompanied by the appointment of a court fine, this measure is assigned to a person who has not completely lost the public danger. Some intermediate states here in the form of a partial loss of public danger by a person, as is the case, for example, with parole when determining the degree of correction of a convicted person, when regulating the grounds for exemption from criminal liability seem unacceptable.

In the Criminal Code of the Russian Federation, one of the grounds for the exemption from criminal liability in question is sometimes recognized as compensation for damage or other redressing of the harm caused by the act. We think that, first of all, the release from criminal liability should be influenced by the loss by the person who committed the crime of his public danger. Undoubtedly, the court, exempting in other cases from criminal liability as a basis for release, also takes into account the loss of the person's former social danger.[9] In the case of application of Art. 762 of the Criminal Code of the Russian Federation, in her opinion, if a person has not lost public danger, then he should be subject to criminal liability, and not be exempted from it, as for the grounds for applying a judicial fine, it will be the same as the grounds for imposing a punishment.[10]

The law, as has already been partially indicated, does not differentiate the grounds for imposing a real punishment, on the one hand, and a judicial fine, on the other. As you can see, the legislator, when modifying the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, was primarily guided by the issues of regulating the grounds for terminating a criminal case, and not creating opportunities for a person to lose or reduce his public danger. In our opinion, it is important to get answers to the questions, how exactly the person relates to the committed crime, the motives of his positive behavior and, in general, his characteristics. Of course, the application of any legislative establishment presupposes an impact on a “living” person, and not on an abstract person.

There is no desired certainty in the understanding of the grounds for exemption from criminal liability with the appointment of a court fine, and law enforcement officers, in particular, do not always give a detailed description of the identity of the guilty person, or in the decision only a reference is made that the court takes into account the specific circumstances of the case. Meanwhile, to decide on the application or non-application of Art. 762 of the Criminal Code of the Russian Federation is possible only taking into account the personality of the perpetrator and his post-criminal behavior. These circumstances are most often referred to by lawyers.

So, in the cassation appeal in the case of S., the lawyer, without challenging the guilt of the client and the qualification of the offense, expressed disagreement with the court decisions taken against him and the imposition of criminal punishment. He believed that in relation to S. should apply Art. 762 of the Criminal Code of the Russian Federation, art. 251 of the Code of Criminal Procedure of the Russian Federation on the termination of the criminal case with the appointment of a criminal-legal measure in the form of a judicial fine, based on “the specific circumstances of the case, data on the identity of the person who committed the crime, full compensation for the harm caused by the crime and apologizing to the victim.[11]   

When appointing a court fine by the court, the data characterizing both the crime and the personality of the perpetrator should be taken into account. So, Sinegubov was accused of stealing the purse and the property in it. While working in a taxi, he found in the back seat a purse left by passenger M. after the trip, in connection with which he had a criminal intent to steal the purse and realized it. The guilty fled from the scene of the crime. His actions were qualified under clause "c" part 2 of Art. 158 of the Criminal Code of the Russian Federation. The court, having studied the materials of the criminal case, after listening to the opinions of the participants in the trial, satisfied the investigator's motion to terminate the criminal case and determine a court fine for him. Sinegubov has not previously been convicted, he is not registered with a narcologist and a psychiatrist, he fully admitted his guilt, he realized the wrongfulness of his actions, he sincerely repented of what he had done, and fully compensated the victim for the harm caused by the crime. He was sentenced to a court fine in the amount of 15 thousand rubles, which must be paid within 1 month.[12]

   In judicial practice, in addition to the general grounds for the application of Article 762 of the Criminal Code of the Russian Federation, other circumstances are taken into account, which make it possible to determine the degree of loss by a person of a public danger or its slight decrease. Thus, the courts actually make up for the ambiguity of the wording of the Criminal Code of the Russian Federation in relation to the grounds for exemption from criminal liability with the appointment of a court fine.

So, Kolpakov S.G., the preliminary investigation authorities were suspected of committing a crime with unmarked alcoholic beverages. He has no criminal record, is the first to be prosecuted for a deliberate crime of little gravity, completely amends the harm, is characterized positively, is in a registered marriage, apologized for the crime by sending a telegram. The court released him from criminal liability with the appointment of a court fine in the amount of twenty thousand rubles and set a deadline for him to pay sixty days.[13]

      The Kamyshinsky City Court of the Volgograd Region considered the case of Snagovsky, who was suspected of inflicting beatings by a person subjected to administrative punishment for beating, which caused the victim physical pain, but did not cause consequences under Article 115 of the Criminal Code of the Russian Federation and committing theft under clause “b »Part 2 of Article 158 of the Criminal Code of the Russian Federation. While committing a crime, he was in a state of alcoholic intoxication, felt a personal dislike for his stepson, and deliberately beat a young boy. Snagovsky was aware of the social danger of his actions and their illegal nature, as well as the onset of socially dangerous consequences in the form of beating a minor. He deliberately beat the child. Later, in the daytime, passing by the barn of one of the houses, he saw that another victim was keeping sacks of grain in the barn, which Snagovsky decided to steal. He came to the place of the theft late at night, with the help of metal reinforcement tore off the padlock, went inside the barn and stole three bags of wheat, weighing 50 kg. every bag. The total cost of the stolen wheat was estimated at one thousand five hundred rubles. He disappeared from the scene of the theft and had the opportunity to dispose of the wheat at his own discretion. Thus, the theft was over. The legal representative of the minor was present at the hearing, who did not object to the application of this measure. The perpetrator himself did not appear in court, but submitted an application for the consideration of the case in his absence and the appointment of a court fine. The court found that the suspicions put forward by Snagovsky of committing crimes (1161, paragraph "b", part 2 of article 158 of the Criminal Code of the Russian Federation) are fully supported by the evidence presented in this case. The court imposed a court fine on him in the amount of 20 thousand rubles, based on the category of gravity of the crimes committed, the fact that he has minor children dependent on him, lack of regular income, and being in a registered marriage. The court ruling states that there are no circumstances preventing the termination of the criminal case against Snagov. He was sentenced to a court fine of 20 thousand. rubles with payment within 60 days.[14]

   This example from judicial practice shows how formally the court is when applying a measure in the form of a court fine. The court took into account that the perpetrator has two dependent children, however, nothing is said in the ruling that one of the crimes was committed against a young child, which should be recognized as an aggravating circumstance and in applying the measure Snagovsky only on this basis should have refuse. A person who does not have a permanent source of income is imposed a fine, thereby calling into question its payment. Will not such actions push him again to commit a crime, since it is no coincidence in Part 2 of Art. 1045 of the Criminal Code of the Russian Federation states that, when determining the amount of the court fine, the court takes into account the possibility of a person receiving wages or other income, as well as the person's property status.

For the application of Art. 762 of the Criminal Code of the Russian Federation, only general grounds are not enough, it is necessary to identify all the available objective and subjective circumstances that characterize the crime and the personality of the perpetrator, which in turn help to determine whether there is or is absent (in whole or in part) in the actions of a person, a public danger.

When determining the amount of the court fine, the court proceeds from the criteria provided for in Part 2 of Art. 1045 of the Criminal Code of the Russian Federation. A judicial fine for committing some crimes can be imposed in a rather impressive amount - for example, when committing a crime under Art. 1721 of the Criminal Code of the Russian Federation, its maximum limit is set at 500 thousand rubles. How convincing in this case are the arguments that the court fine is not a veiled punishment, but some kind of "harmless" non-punitive measure? Given the low wages and other incomes of Russians, it should be recognized that there is a fairly high punitive potential for fines of this size. It is unlikely that a combination of, on the one hand, exemption from criminal liability, and on the other hand, the imposition of a fine, calculated in the amount of 250-500 thousand rubles, can be called an acceptable combination. The preventive effect of a court fine as a measure of a criminal law nature may well be ensured when its maximum amount (when it is determined based on the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation) is reduced to 150 thousand rubles.

After analyzing the provisions of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, it becomes obvious that in the law, namely: in the PEC of the Russian Federation, the procedure for the execution and serving of another measure in the form of a judicial fine should be fixed. In this regard, we propose to supplement Chapter 5 of the Criminal Executive Code of the Russian Federation with article 321 "Procedure for the execution of another measure in the form of a court fine" with the following content:

1. The person is obliged to pay the court fine within 60 days from the date of entry into force of the court decision.

2. If a person is unable to pay the court fine at a time, the court, at his request, may defer payment of the court fine for a period of up to one year.

3. A person who has been granted an installment plan for the payment of a court fine is obliged to pay the first part of the court fine within the first 60 days from the date of entry into force of the court decision. The person is obliged to pay the remaining parts of the court fine on a monthly basis no later than the last day of each subsequent month.

The emergence of a new type of exemption from criminal liability with the appointment of a judicial fine also caused its competition with other types of exemption from it; essentially the same actions to make amends for the harm caused as a result of the commission of a crime are provided for in Art. 76 and 762 of the Criminal Code of the Russian Federation. However, they differ in the consequences of their application; if release from criminal liability in connection with reconciliation with the victim is unconditional and final, then this release entails the appointment of a court fine, and failure to pay - its cancellation. And, of course, release with a court fine is not conditional on reconciliation with the victim, although it is not excluded. It is also necessary to distinguish between the grounds for the application of exemption from criminal liability in connection with the appointment of a court fine and in connection with active repentance, since in the latter case, to state active repentance, it may not be enough to just smooth over the harm caused by the crime. And, in addition, as in the case of release in connection with reconciliation with the victim, this type of release from criminal liability is unconditional and final.[15]

The study of the problem of exemption from criminal liability with the appointment of a court fine leads us to the conclusion about the desire of the legislator to humanize the practice of counteracting crimes of a small or medium degree of public danger. Meanwhile, we have to admit that its modern solution seems to be not entirely successful in terms of determining the grounds for this type of exemption from criminal liability and its legal nature.

1. Alikperov Kh.D. Exemption from criminal liability due to the expiration of the statute of limitations // Legality. 1999. No. 8. P. 12-14.

2. Balafendiev A.M., Kalimullina Ya.L. Exemption from criminal liability in connection with active repentance / A.M. Balafendiev, J.L. Kalimullina. Kazan: Kazan Publishing House. un-ta, 2017.138 s.

3. Duyunov V.K. Release from criminal liability and criminal punishment / V.K. Duyunov. - Togliatti: Publishing house of the Volzhsky un-ta im. V.N. Tatishcheva, 2001.390 p.

4. Knyazkov A.A. Exemption from criminal liability with the appointment of a court fine (Article 762 of the Criminal Code of the Russian Federation): debatable issues of justice // Bulletin of the Yaroslavl State University. Series Humanities. 2019. No. 3. S.67-71.

5. Commentary on the Criminal Code of the Russian Federation (scientific and practical / edited by A.I. Chuchaev.M .: Prospect, 2019.1536 p.

6. Krylova N.E. Exemption from criminal liability with the appointment of a court fine: problems of legislative regulation and law enforcement // Vestnik Mosk. un-that. Series 11. Right. 2016. No. 3. P. 25-37.

7. Review of judicial practice with the appointment of a judicial fine (Article 762 of the Criminal Code of the Russian Federation; approved by the Presidium of the Supreme Court of the Russian Federation on July 10, 2019). https://www.vsrf.ru/documents/all/28088/.

8. Piyuk A.V. Exemption from criminal liability with payment of a court fine: problems and prospects for the application of the procedural institution // Criminal Justice. 2018. No. 11. P. 99-102.

9. Piyuk A.V. Russian Gournal of Criminal Law. 2018. No. 11. p.99-101.

10. Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 19 "On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability" - URL: http://base.garant.ru/70404388.

11. Ryzhikov A.P. Commentary on the Federal Law of the Russian Federation of July 3, 2016 No. 323-FZ "On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation on Improving the Grounds and Procedure for Exemption from Criminal Liability." [Prepare For the GARANT system, 2016] - URL: http // base.garant.ru/57245860.

12. Criminal law of Russia. General part: Textbook / Ed. F.R. Sundurov and I.A. Tarkhanov. - 2nd ed., Rev. and add. - M .: Statut, 2016.864s

13. Data of the Judicial Department at the Supreme Court of the Russian Federation. - URL: http://www.cdep.ru/index.php?id=5.