Article 61 of the Criminal Code of the Russian Federation. Circumstances mitigating punishment

Criminal Code of the Russian Federation in the latest edition:

Article 61 of the Criminal Code of the Russian Federation. Circumstances mitigating punishment

1. The following are recognized as mitigating circumstances:

a) committing a crime of minor or medium gravity for the first time due to a random combination of circumstances;

b) the minority of the perpetrator;

c) pregnancy;

d) the presence of young children with the perpetrator;

e) committing a crime due to a combination of difficult life circumstances or out of compassion;

f) committing a crime as a result of physical or mental coercion or due to financial, official or other dependence;

g) commission of a crime in violation of the conditions of legality of necessary defense, detention of the person who committed the crime, extreme necessity, justified risk, execution of an order or instruction;

h) illegality or immorality of the behavior of the victim, which was the reason for the crime;

i) confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime;

j) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property damage and moral harm caused as a result of the crime, and other actions aimed at making amends for the harm caused to the victim.

2. When assigning a punishment, circumstances not provided for in part one of this article may be taken into account as mitigating circumstances.

3. If a mitigating circumstance is provided for by the relevant article of the Special Part of this Code as an element of a crime, it in itself cannot be taken into account again when assigning punishment.

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Comments on Article 61 of the Criminal Code of the Russian Federation

In the presence of one or more circumstances provided for in Part 1 of Art. 61 of the Criminal Code of the Russian Federation, the court is obliged to mitigate the punishment of the perpetrator within the limits of the sanction.

Mitigating circumstances cannot influence the establishment of signs of a crime or the crime itself, but can significantly affect the assignment of punishment.

The legal significance of mitigating circumstances lies in the fact that they reduce the degree of public danger of the crime committed, as well as the identity of the perpetrator, and influence not only the court’s choice of a specific punishment, but are also taken into account when deciding on release from criminal liability, the application of a suspended sentence, etc. d. The nature of mitigating circumstances, as well as the presence of several circumstances, may give the court grounds to consider them as exceptional and impose a more lenient punishment than provided by law (Article 64 of the Criminal Code of the Russian Federation).

The list given in Article 61 of the Criminal Code of the Russian Federation is approximate and not exhaustive . The court has the right to recognize any other circumstance as mitigating at its discretion, citing the reasons for such a decision in the verdict.

The court's assessment of circumstances as mitigating

the prerogative of the court to assess this or that circumstance as mitigating . This means that lists of circumstances mitigating or aggravating punishment are not automatically taken into account by the court and reflected in the verdict, but must be established at the court hearing and recognized as such in court and only after examining all the evidence in the aggregate at the court hearing. Failure to recognize a circumstance as mitigating punishment must be motivated in the descriptive and motivational part of the sentence.

The list of mitigating circumstances given in Art. 61 of the Criminal Code of the Russian Federation

1) commission of a crime of minor or medium gravity for the first time due to a random combination of circumstances . To take this circumstance into account as a mitigating factor, all three factors must be present:

committing a crime of minor or medium gravity. The concept of crimes of minor or medium gravity is determined based on the provisions of Art. 15 of the Criminal Code of the Russian Federation;
committing a crime for the first time. A person who has committed one or more crimes, for none of which he was previously convicted, or when the previous sentence against him has not entered into legal force or convictions for previously committed crimes have been expunged and expunged, should be considered to have committed a crime of minor or medium gravity for the first time. in accordance with the procedure established by law (clause 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 01.02.2011 N 1). This category includes, among other things, persons who have previously committed crimes, but in relation to them the statute of limitations for criminal prosecution has expired (Article 78 of the Criminal Code of the Russian Federation), the statute of limitations for the execution of a conviction has expired (Article 83 of the Criminal Code of the Russian Federation), if their criminal record has been expunged as a result of acts of amnesty (Article 84 of the Criminal Code of the Russian Federation), pardon (Article 85 of the Criminal Code of the Russian Federation), if the criminal record is cleared or canceled on a general basis (Article 86 of the Criminal Code of the Russian Federation).
the presence of a random coincidence factor. A random coincidence of circumstances should be considered objectively formed personal or family circumstances, although of a short-term nature, but which had a strong emotional impact on the perpetrator. The presence of a random combination of circumstances is established in each specific case. This is a matter of fact. It can be expressed, for example, in a situation such as the commission of a crime under the influence of an adult.

2) the minority of the perpetrator is a circumstance mitigating the punishment. The juvenile age of the culprit is characterized by instability in behavior, impulsiveness, excess energy, and inability to use it in the right direction.

Minors are persons who were fourteen years old at the time of committing a crime, but not eighteen years old (Article 87 of the Criminal Code of the Russian Federation). For the commission of the vast majority of crimes listed in the Criminal Code of the Russian Federation, criminal liability begins at a minor age. Minority under the provisions of Ch. 14 of the Criminal Code of the Russian Federation is taken into account as a feature when assigning punishment, and therefore the term and amount of punishment must be determined in accordance with Art. 88 of the Criminal Code of the Russian Federation, which does not prevent minorities from being taken into account as a mitigating circumstance. The minority of the perpetrator must be recognized as a mitigating circumstance, even if by the time the case is considered in court the perpetrator has reached the age of majority.

3) pregnancy is recognized as a circumstance mitigating the punishment of the guilty party, primarily based on the principle of humanism, which is dictated by concern for the health of the child and the woman herself.

Pregnancy leaves a serious imprint on the behavior of the culprit, her state of health and psyche, and is accompanied by increased sensitivity, hot temper, irritability, etc. Neither the duration of pregnancy nor the range of crimes in the commission of which it acts as a mitigating circumstance are limited; The law also does not require a direct connection between the state of pregnancy and the commission of a crime.

4) the presence of young children with the perpetrator . A minor is a minor who has not reached the age of 14 (Article 28 of the Civil Code of the Russian Federation). The presence of young children of the perpetrator is considered as a circumstance mitigating punishment, which requires research and appropriate assessment. For example, the presence of young children of a convicted person in judicial practice is not regarded as a mitigating circumstance if the convicted person committed a crime against his own child, as well as in relation to an adopted or dependent child of the convicted person or a child under his guardianship, or deprived of parental rights, and also if he did not take any part in the upbringing and maintenance of the child.

The presence of a young child of the perpetrator of malicious evasion of payment of funds for the maintenance of this child, as determined by the court, should not be recognized as a mitigating circumstance, as well as in cases where the perpetrator does not live with the family for a long time and does not provide assistance to them, and is cruel to children. etc.

5) committing a crime due to a combination of difficult life circumstances or out of compassion involves a difficult financial situation due to lack of work or insufficient income to support the family, illness of a family member or loved one, difficult housing or family conditions, etc. A combination of difficult life circumstances or a motive of compassion are considered mitigating circumstances only if the crime committed is closely related to them. Such conditions may be recognized, for example, the lack of funds for living in the event of loss of work - in case of theft of someone else's property; serious illness of the culprit or his relatives - during theft of narcotic drugs.

The motive of compassion, i.e. pity, sympathy caused by someone’s misfortune, grief, can occur, for example, when giving, at the request of a seriously ill person, a large dose of medicine, from which the perpetrator knows the death of the patient will occur, committing theft in favor of other persons who do not have the means to live, and so on.

6) the commission of a crime as a result of physical or mental coercion or due to material, official or other dependence can be considered a circumstance mitigating punishment only if the court recognizes such dependence or coercion as having actually taken place, and the actions of the coerced person themselves are forced , since his will is, as a rule, suppressed, but such suppression does not completely deprive the person of the ability to resist coercion. Otherwise, we should talk about innocent causing of harm, about the absence of a crime in the actions of the guilty party.

Physical or mental coercion of a person to commit a crime is mitigating provided that the coercion suppressed the person’s will and limited his freedom of behavior. Coercion can be physical (beating, imprisonment, causing harm to health, etc.) or mental (a real threat to harm health, property, interests, etc.). In this case, we are talking about surmountable coercion, since if coercion is recognized as insurmountable, liability is excluded.

Financial is considered to be the dependence of the perpetrator on the person with whom he is dependent, lives in his living space, receives funds to provide for himself and his loved ones, the dependence of the debtor on the creditor, etc.

Service dependence is based on the subordination of one person to another for work in enterprises and organizations of any form of ownership.

Another dependence may arise on the basis of marital, family, and family and work relationships.

Criminal liability, and therefore punishment, cannot occur if the influence in the form of coercion puts the person committing illegal actions in conditions of extreme necessity. For example, a bank teller transferring funds to attackers who threatened to use weapons or take their lives.

7) commission of a crime in violation of the conditions of legality of necessary defense, detention of a person who committed a crime, extreme necessity, justified risk, execution of an order or instruction . If a person commits a crime in violation of the conditions of legality of actions specified in Art. Art. 37 - 42 of the Criminal Code of the Russian Federation, criminal liability arises, but these circumstances are recognized as mitigating punishment.

The specified circumstances can be considered mitigating if they are not part of the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, such as, for example, murder committed when the limits of necessary defense were exceeded or when the measures necessary to detain the person who committed the crime were exceeded (Article 108 of the Criminal Code of the Russian Federation) ; causing serious or moderate harm to health when exceeding the limits of necessary defense (Article 114 of the Criminal Code of the Russian Federation), etc. If these circumstances are included in the disposition of the criminal law norm, they cannot again be taken into account as circumstances mitigating the punishment. Therefore, in the latter capacity, the circumstances under consideration can only act when they are not provided for by the article of the Special Part of the Criminal Code of the Russian Federation.

illegality or immorality of the behavior of the victim, which was the reason for the crime . The concept of wrongfulness is not limited to the commission of a crime. It also includes other actions prohibited by other branches of law, for example administrative, labor, and civil law. Thus, illegal behavior can be expressed in beatings, bullying (mockery), serious insults, humiliation of human dignity, and can also consist of abuse of official position, blackmail and other actions, i.e. actions that are not violence, bullying, or serious insult, but are illegal in nature.

Establishing the immorality of the victim’s behavior requires its assessment from the position of moral, moral and ethical rules generally accepted in society, ideas about such categories as justice, honor, good and evil, etc.

9) confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime.

Confession is a voluntary statement by the perpetrator about the crime committed. A mitigating circumstance will be any surrender, regardless of the time that has elapsed since the commission of the crime, its nature, as well as the motives for such behavior.

Actively contributing to the detection and investigation of a crime is expressed in the fact that the perpetrator provides the inquiry or investigative authorities with information previously unknown to them (indicates the location of the instruments of the crime, helps in organizing and conducting investigative experiments, accounting examinations, presents physical evidence, etc. .).

Actively facilitating the exposure and prosecution of other accomplices in a crime, the search for property obtained as a result of a crime, are forms of active behavior of the perpetrator in solving a crime, expressed, for example, in indicating the persons involved in the commission of crimes, reporting their data, location, reporting data confirming the participation of accomplices in the commission of the crime, indicating the place where the stolen property was hidden, the persons who acquired the stolen property, etc.

To recognize these circumstances as mitigating punishment, it remains important that these actions be performed voluntarily, and not under the pressure of available evidence.

10) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property damage and moral harm caused as a result of the crime, other actions aimed at making amends for the harm caused to the victim.

Providing medical care can be expressed, for example, in such actions as taking measures to stop the victim’s bleeding, making and applying a splint for a fracture, calling an ambulance, taking him to the hospital, etc.

Compensation for property damage may consist of compensation in the form of payment of funds, compensation for damage with similar destroyed items, other items satisfying the victim, etc.

Compensation for moral damage consists of providing moral satisfaction to the victim, such as an apology, a request for forgiveness, or compensation for moral damage in material terms. A combination of these types of compensation is also possible.

Other actions aimed at making amends for the harm can be very diverse and largely depend on the nature of the harm caused, for example, the perpetrator himself repairs the premises that were damaged, refuting false fabrications in case of slander, reinstatement at work in case of violation of the equality of rights and freedoms of man and citizen and etc.

These circumstances indicate the repentance of the perpetrator for his crime and can be considered as circumstances mitigating punishment.

Not for selfish reasons...

In jurisprudence, it is a generally accepted fact that any theft is committed not only intentionally, but also for personal gain. However, the question of what a selfish goal includes and what specific actions may fall under the definition of self-interest continues to remain controversial both in the science of criminal law and in law enforcement practice.

Approaches to interpreting the content of a selfish goal

Today, there are two main approaches to the issue of the content of a selfish goal as part of theft. A selfish goal can be interpreted :

- or too broadly - as a desire to dispose of property as one’s own, to benefit oneself and/or other persons, whose circle is not limited;

- or too narrowly - as a desire for personal enrichment, transfer of property to one’s own benefit or to the benefit of loved ones.

This situation creates uncertainty in practice and allows for a situational interpretation of the provisions of criminal law. Let us cite as an example the materials of one criminal case .

The head of the district civil registry office offered citizens to pay for civil registry office services in cash in the same amount as if they had paid for these services officially through a bank, transferring the money to her. Thus, in a number of episodes it was established that the manager went to register weddings, but citizens did not pay for the marriage registration in the prescribed manner (they did not deposit money into a bank account), but settled with the manager on the spot. The money received in this way was completely spent on the needs of the registry office: the interior was updated, the roof was repaired, etc. This was due to the fact that the district budget did not provide the necessary funds, so money was needed in order not to bring the registry office to a deplorable state. The preliminary investigation authorities opened a criminal case under Art. 210 of the Criminal Code (theft by abuse of official powers). However, during the investigation, the question arose whether there really were signs of theft of other people's property, in particular, a selfish purpose.

As you can see, the main problem in this example came down to the fact that the manager did not take money for herself personally, but spent it entirely on the needs of the registry office, which was confirmed by the receipts she saved. In other words, the manager did not acquire things that she would personally use and would derive any benefit from it for herself. The manager benefited, but not selfishly, but in the language of the law – “other personal.” Nevertheless, even if we assume that it was another personal interest, then it (another personal interest) is not a sign of theft, since it characterizes a different, non-selfish motive for committing the act.

If in this case the selfish goal is interpreted too narrowly - namely, as the appropriation of someone else's property, regardless of the circumstance of how the person disposed of the stolen property, then in such a situation a selfish goal is indeed seen, accordingly, further it is necessary to talk about theft. That is, how the person disposed of the stolen property (where and what exactly the money was spent on) does not interest us. This is, in principle, true (in relation to the disposal of property), but then the following question arises: does the motive for committing theft really matter in such a situation ? Putting the question in a different way, we note: why, in the case of illegal seizure of property, does it not matter at all the fact for what purpose the illegal act was committed and where exactly the funds obtained illegally were intended to be spent? Indeed, in the case under consideration, it was not the head of the registry office who enriched himself, but the government agency as a legal entity, since its material and technical condition improved due to the lost funds from the district budget.

In this case, we cannot say that the manager took the money for herself, and therefore disposed of it as she wanted, i.e. improved the financial condition of the registry office. It seems that the situation looks different after all. The manager did not have a selfish goal , so it is impossible to talk about her committing theft of someone else’s property through abuse of official powers.

This problem can be looked at from the other side. From the point of view of social justice, it is impossible to put on the same scale cases when, for example, the chief accountant illegally accrues wages to himself and his relatives and appropriates this money, spending it on his own needs; and cases when the same chief accountant, out of pity or altruistic reasons, transfers money to the organization, without having the right to do so, to an orphanage for lonely and parentless orphans (while the accountant has no personal interest there). To say here that the criminal law does not make any differentiation and does not see any difference, assessing the actions of the chief accountant in both the first and second cases in the same way, is extremely harsh and unfair. In this case, it is the psychological component that is important , i.e. The motive for committing a crime is of great importance.

Therefore, in our opinion, these situations should be separated, and in such cases the responsibility should not be the same, since these are different actions from the point of view of the subjective component of the persons committing them and the goals they pursue. In part, today the criminal law does this, establishing in Art. 217 of the Criminal Code criminal liability for illegal gratuitous alienation in a significant amount (i.e. in the amount of more than 40 basic units on the day the crime was committed) of someone else’s property entrusted to the perpetrator, in the absence of a selfish goal.

Considering this situation, it should also be said that the question of the absence of signs of theft should be raised here not only because there is no selfish purpose, but also because the guilty person did not take possession of property from public funds . This money seemed to be intended for the state, but had not yet arrived. Therefore, the head of the registry office department did not seem to withdraw property (money) from the corresponding budget. Moreover, it did not have the authority to accept cash from citizens. These funds were not capitalized and were not listed on the organization’s balance sheet. Therefore, in this case we can talk about causing property damage without signs of theft , because this money was still intended for the state, and it was not received due. This is a classic situation for Art. 216 of the Criminal Code (causing property damage without signs of theft). And if such damage amounted to 40 basic units or more, then only then can we talk about bringing the person to criminal liability, otherwise there is administrative liability provided for in Art. 10.7 Code of Administrative Offences. The only obstacle here is the fact that, as stated in Art. 216 of the Criminal Code, a person must derive a property benefit . But the head of the registry office department did not derive any property (material) benefit for herself or her loved ones, and did not personally enrich herself from the funds received and used for the needs of the registry office. This indicates that she acted disinterestedly, and therefore, signs of a crime under Art. 216 of the Criminal Code are absent from her actions.

Qualification problems based on official status

As law enforcement officials point out, Art. 216 of the Criminal Code has many common features with Art. 424 of the Criminal Code (abuse of power or official authority). However, if in Art. 424 of the Criminal Code, the obligatory subject is an official , then in Art. 216 of the Criminal Code there is no such indication. This circumstance allows many scientists and law enforcement officials to draw a very subtle conclusion: if property damage to an organization or the state is caused by an official, then in such situations it is necessary to talk exclusively about Art. 424 of the Criminal Code, and not about Art. 216 of the Criminal Code <*>. In other words, we are talking about general and special criminal law norms, and in case of competition between them, a special norm must apply (in our case, Article 424 of the Criminal Code).

On this issue, it is usually stated in the criminal law literature that if an official, abusing his official powers, commits an act that is objectively expressed in causing property damage in the amount of 250 basic units, then there is precisely an abuse of power or official powers <* >, since such an act is committed exclusively by an official. In this regard, it is necessary to clearly distinguish between the official powers of an official and his purely professional duties that are not official. Consequently, liability for causing property damage under Art. 216 of the Criminal Code can only be enforced against an official who uses only professional and not official powers to cause property damage. And since Art. 216 of the Criminal Code does not contain a special qualifying feature “using official powers”, then when causing property damage using official powers, liability should arise only under Art. 424 of the Criminal Code (if all the signs of this crime are present).

Note that practice does not always adhere to these postulates and often, according to Art. 216 of the Criminal Code also condemns officials who use their official powers when committing an unlawful act.

Arbitrage practice

K., being the manager in the bankruptcy case of IChUP "K", in the period from 03/27/2001 to 04/04/2002, accepted under the report for further sale 39 items of property of IChUP "K" in the amount of 7,954,716 BYN. rub. (before denomination). By deliberately reducing prices for property to be sold, without coordinating this with the meeting of creditors, K. sold it at reduced prices, thereby violating the requirements of Art. 130 – 142 of the Bankruptcy Law, as a result of which PolyTorg LLC (creditor) suffered property damage in the amount of 4,552,822 BYN. rub. (before denomination), which is damage on a large scale. The court found K. guilty of causing property damage without signs of theft committed on a large scale <*>.

In this case, the bankruptcy manager is an official, and there were every reason to raise the question of bringing him to criminal liability under Art. 424 of the Criminal Code, and not under Art. 216 of the Criminal Code, but law enforcement agencies decided otherwise. This means that we can assume that, from the point of view of the law enforcement officer, the criteria for delimiting Art. 216 of the Criminal Code from Art. 424 of the Criminal Code there may be others, and they are not related only to the status of the subject .

Indeed, prosecutorial and investigative practice knows many cases of bringing to criminal liability precisely officials who use their powers to commit illegal acts, under Art. 216 of the Criminal Code. Most often, this was done precisely because it was impossible to prove the fact that an official, abusing his powers, committed an act contrary to the interests of the service.

Arbitrage practice

By the verdict of the Minsk City Court, B. and M. were found innocent and acquitted under Part 2 of Art. 216 and part 2 of Art. 380 of the Criminal Code for lack of proof of participation in the commission of crimes. By the ruling of the judicial panel for criminal cases of the Supreme Court of the Republic of Belarus, the verdict was left unchanged, and the cassation protest was not satisfied. The preliminary investigation body charged B. and M. with the fact that B., being a co-founder of D-91 LLC, in a preliminary conspiracy with M., the director of D-91 LLC, acting in a group of persons and having the intent to cause property damage on a large scale without signs of theft, by deceiving ZhREO employees, they caused damage on a large scale by extracting property benefits in the absence of signs of theft. M., in fulfillment of her role, produced a counterfeit copy of the license for the right of LLC “D-91” to carry out retail trade and public catering, which, obviously for the accused, testifies to the actual implementation of retail trade, which, in turn, gives the right to apply a reduced coefficient of 0.5 to the base rental rate, after which B., through P., not aware of his criminal intentions, presented a certified copy of the said license in order to extract property benefits for the rented areas of retail premises in the housing and communal services area. Based on this, ZhREO employees unreasonably recalculated the amount of debt of LLC “D-91” for rent downwards in the amount of 27,861,657 BYN. rub. (before denomination). The court came to the conclusion that the commission of crimes by B. and M. had not been proven, since the evidence presented by the prosecution was insufficient to conclude that they were guilty of the charges brought against them. The reason for the verdict was the different assessment by the investigation and the court of the evidence collected in the case.

As can be seen, in this case M. was an official, but she was charged under Art. 216 of the Criminal Code. This refutes the arguments that the subject of causing property damage without signs of theft cannot be an official, and in such situations the actions of officials must be qualified under Art. 424 CC.

From this point of view, it is impossible to resolve the issue purely in the same plane as Art. 216 of the Criminal Code is common in relation to Art. 424 CC. And if the infliction of property damage without signs of theft is committed by an official, then in this case the question must be raised about the application of Art. 424 CC. Even if some elements of the specified elements of crimes coincide, this does not give grounds for concluding that the specified legal norms are competing and the application of the rule on the operation of general and special norms . These are completely different standards, and the specified qualification rule does not apply here.

The list of mitigating circumstances not specified in Article 61 of the Criminal Code of the Russian Federation

The list of mitigating circumstances is not exhaustive , and when imposing a punishment, other circumstances not specified in Part 1 of Art. 61 of the Criminal Code of the Russian Federation. In paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 2015 N 58 “On the practice of imposing criminal punishment by the courts of the Russian Federation,” the following is stated, in particular:

As a circumstance mitigating punishment, the court has the right to recognize:

admission of guilt, including partial;
repentance for what he has done;
the presence of minor children, provided that the perpetrator takes part in their upbringing, financial support and the crime has not been committed against them;
the presence of elderly people dependent on the perpetrator;
the health status of the perpetrator;
the perpetrator has a disability;
the perpetrator has state and departmental awards;
participation of the perpetrator in military operations to defend the Fatherland, etc.

As judicial practice shows, most often, as mitigating circumstances, courts take into account: the positive characteristics of the personality of the perpetrator at the place of work, study or residence, his attitude to work, study and society, the state of health of the perpetrator.

Judicial practice: sentences and punishment under Art. 61 of the Criminal Code of the Russian Federation

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