Active Repentance as a Ground for Exemption from Criminal Liability: Terminological Validity, Provability, and Regulatory Reformation Ways

The article offers a critical analysis of the term “active repentance” employed by the legislator in Article 75 of the Criminal Code of the Russian Federation and Article 28 of the Criminal Procedure Code of the Russian Federation. A formal legal analysis of Part 1 of Article 75 reveals its internal heterogeneity: the list of objectively ascertainable post-criminal acts is supplemented by a causal-psychological formula that elevates a moral experience to the rank of an element of the factual basis for exemption. A historical comparison of the successive versions demonstrates that this formula was absent from the original text and was introduced by Federal Law No. 162-FZ of 8 December 2003. The authors argue that repentance does not form part of the subject of proof and cannot be directly established by any of the types of evidence provided for by law, so that proof is replaced by a practically irrebuttable presumption derived from the very acts of which repentance is declared to be the cause. A normative dissonance is identified between Part 2 of Article 28 of the Criminal Procedure Code, which requires active repentance, and Part 2 of Article 75 of the Criminal Code, which contains no psychological conditions whatsoever; this reading is confirmed by the clarification of the Plenum of the Supreme Court of the Russian Federation relieving law enforcement authorities of the need to establish the general conditions of Part 1 of Article 75 when applying special forms of exemption. The trend toward the consistent replacement of emotional terminology with behavioral terminology is also characteristic of foreign law. Proposals for amending the criminal and criminal procedure legislation are formulated.