Characteristics of physical and mental coercion
In the science of criminal law, there is a case when a citizen, committing a crime under duress, ultimately is not the subject of a crime and his actions are not criminal.
In theory it sounds very encouraging, but harsh practice, in the role of which the court acts at its discretion, objectively and comprehensively.
The implementation of these principles comes down to the fact that the judge is forced to examine the facts and evidence presented by the investigation and the defense.
Indeed, if it is established that a citizen committed a crime under physical or mental coercion, then he does not commit a crime, since he is under the influence of the attacker - the real subject of the crime. But there is a fine line between participation under duress and complicity in a crime.
Problematic issues of coercion as a circumstance excluding the criminality of an act
The article discusses problematic issues of coercion in criminal law enforcement practice, issues of establishing the truth, validity and reality of the case - identifying actual circumstances that exclude the criminality of the act.
Key words: circumstances excluding the criminality of an act, physical coercion, mental coercion, Criminal Code, legislation of the Russian Federation, legal conflict.
The article deals with the problematic issues of coercion in criminal law enforcement practice, the issues of establishing the truth, reality and reality in the case—the identification of actual circumstances that exclude the criminality of the act.
Key words: circumstances including the crime of the act, physical coercion, mental coercion, the Criminal Code, the legislation of the Russian Federation, legal conflict.
Law enforcement practice determines whether the act contains circumstances that exclude the criminality of the act or not, when the act goes from a socially useful act to a socially dangerous one, and vice versa. Gaps in the practice of applying criminal law prohibitions, in which coercion is the key content of the objective side of the crime, lead to ambivalent interpretations of the criminal law and, as a consequence, to some errors and inaccuracies in law enforcement practice. This significantly causes difficulties in suppressing and identifying criminal acts characterized by coercion.
At the same time, the concept of “coercion” is one of the most controversial definitions of the current Russian criminal legislation. And the analysis of the articles of the Criminal Code of the Russian Federation and their application in practice allows us to conclude that the provisions of these articles constitute only a general idea of the content of the concept of “coercion”, since the legislator has not given a complete and exhaustive definition of what, in our opinion, is omission and gap for criminal legislation. In addition, it should be noted that the substantive part of the concept of “coercion” is not disclosed in the decisions of the Plenum of the Supreme Court of the Russian Federation. In theory, concepts such as “coercion” and “violence”, “coercion” and “coercion” are often intertwined, and only the establishment of clear definitions in legislation can solve this problem.
Also, the Criminal Code of the Russian Federation does not contain a definition of the types of coercion. The content of physical coercion is formed on the basis of an analysis of the norms contained in Art. 40 of the Criminal Code of the Russian Federation and etymological analysis of the concepts “coercion”, “physical influence”, “mental influence”. There is also mental coercion, which is regulated by the norms of Part 2 of Art. 40 of the Criminal Code of the Russian Federation. We know that any impact on a person’s psyche affects his actions, and in some cases a person cannot control his actions.
A comparative analysis shows that the criteria for these types of coercion are very similar to each other. But at the same time, it is necessary to distinguish between situations when circumstances of physical and mental coercion can exclude criminal liability, aggravate or mitigate criminal punishment. These circumstances have their own characteristics and the decision on their presence or absence is made only by the court.
Thus, according to the Appeal Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 04/06/2017 N 46-APU17–2, the verdict was passed contrary to the provisions of Art. 40 of the Criminal Code of the Russian Federation, the provisions of paragraph “e” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation. The punishment was imposed without taking into account the role of the convict in the group crime; the verdict did not contain the contents of telephone conversations and conclusions about the existence of his connection with other convicts. The verdict does not reflect the fact that of all those convicted, he knew only Burshtein [4].
According to current legislation, all the circumstances provided for by the Criminal Code of the Russian Federation allow the court to take a differentiated approach to each specific situation when assigning punishment. But a particular difficulty lies in the fact that in practice it is not always possible to correctly give a legal assessment of this or that type of coercion. We are talking about when the same circumstances can be either circumstances excluding criminal liability or aggravating, mitigating criminal punishment.
According to Part 2 of Art. 40 of the Criminal Code of the Russian Federation, the issue of liability is resolved taking into account Art. 39 of the Criminal Code of the Russian Federation, i.e. according to the rules of extreme necessity, according to which the harm prevented must be greater than the harm caused.
An important role in law enforcement practice is played by an expert’s opinion, which is able to establish validity, truth, reality. In this case, the validity and reality of coercion, the truth of the fact of the occurrence of such an event, since law enforcement practice takes into account the fact of coercion only in reality, and not the fiction of the coerced. In this case, if, nevertheless, the fact of coercion is absent in reality, then it should be considered as imaginary coercion.
Let's return to the expert's conclusion. The use of special knowledge of experts in a criminal case is an important criterion when making a legal and informed decision. It is equally important, both for the defendant himself and for the entire Russian criminal legal system, that specialists in this field are anti-corruption, objective and honest when giving opinions on certain cases. After all, innocent people will suffer from a false examination, and this should not happen. Although experts are warned about criminal liability for giving a knowingly false conclusion, we believe that in this case this is a weak argument.
To solve the above problems, we believe that the legislator needs to define the concept of “coercion”, its types, in order to prevent their confusion with others: “violence”, “coercion”, “force majeure”, etc. Otherwise, in practice, incorrect interpretation of the data will continue concepts, which entails a number of judicial errors: starting with the incorrect classification of the crime, ending with the court verdict [3].
Circumstances excluding a criminal act, according to the author of the work, are necessary, since the main goal of criminal law is to punish the guilty and protect the innocent. However, this article is quite often used by attackers as an attempt to avoid justice. Judicial practice in criminal cases knows cases where, thanks to these norms, numerous offenders tried to avoid deserved punishment and, due to the lack of appropriate evidence, evaded criminal liability.
Now, criminologists and law enforcement officials are faced with a legal conflict when rules of law aimed at protecting the innocent are used by criminals to avoid punishment.
Also worthy of attention is the legal conflict that law enforcement officials, criminologists and judges are forced to face - the ratio of complicity of the coercer and the coerced. In some cases, participants in a crime, by prior conspiracy, if the case fails, give testimony in which the persons involved in the case act as a coerced and coercing person, which does not aggravate the crime with the wording “by prior conspiracy, by a group of persons” [2].
Let us give an example from judicial practice. Agaeva E.I. was the chief accountant of Ya-Polyglot LLC. According to the agreement on full individual financial liability dated July 1, 2011, E. I. Agayeva assumed full financial responsibility for the shortage of property entrusted to her by the employer, as well as for damage incurred by the employer as a result of compensation for damage to other persons. According to clause 8 of section 2 of the job description of the chief accountant, approved by the general director of Ya-Polyglot LLC N.N. dated 04/15/2011, Agaeva E.I. is vested, along with others, with the authority to calculate and issue wages to employees in accordance with the workload performed, in accordance with the tariffs established by the Director of Human Resources.
Having the authority to calculate and issue wages to employees of Ya-Polyglot LLC, Agaeva E.I., pursuing selfish motives for personal enrichment through the appropriation of funds entrusted to her, decided to take advantage of the opportunities available to her, determined by her official position, which provides access to funds of the Society and took several bills out the back door and handed them to an accomplice. After the arrest of the criminals, the testimony that they gave to the investigative bodies made it possible to bring the actions of E. I. Agayeva under Art. 40 of the Criminal Code of the Russian Federation - physical or mental coercion, who claimed that her actions were committed under the influence of hypnosis. Only thanks to the appropriate medical examination it was possible to establish that Agaeva E.I., due to her psychological characteristics, is not susceptible to hypnotic influence [5].
As we see, the norms of articles excluding the criminality of an act, in particular Art. 40 of the Criminal Code of the Russian Federation are necessary, since the main goal of criminal legislation is to punish the guilty and protect the innocent. However, this article can be used by attackers as an attempt to avoid deserved punishment. The objective reality that legal scholars and criminologists are currently faced with is the search for new methods and the development of an evidence base to identify those attackers trying to avoid punishment through Article 40 of the Criminal Code of the Russian Federation. Like fingerprints, each case is unique and must be considered individually.
Literature:
- Criminal Code of the Russian Federation of June 13, 1996 N 63-FZ // Collection of Legislation of the Russian Federation of June 17, 1996 - N 25 - Art. 2954.
- Borzov I.G. Physical or mental coercion as a circumstance excluding criminality of an act // Alley of Science. - 2018. - T. 4. No. 3 (19). — pp. 321–324.
- Kozhukhova A. S., Keidunova E. R. Current issues of physical or mental coercion as a circumstance excluding the criminality of an act // In the collection: society, economics and law: current state and issues. Materials of the X International Scientific and Practical Forum. — 2021. — pp. 464–468.
- Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 04/06/2017 N 46-APU17–2 // URL: https://ukrfkod.ru/statja-40/
- Verdict No. 1–14/2015 1–647/2014 of March 31, 2015 in case No. 1–14/2015 // URL: https://sudact.ru/regular/doc/0SdNL2OpyAWn/
Types of physical and mental coercion
The offender can influence the victim in various ways. If this is a physical impact, then it can be expressed in beatings, mutilations, rape, and causing the death of close relatives.
It is also customary to distinguish between irresistible coercion by force, when a person is completely deprived of the opportunity to realize what is happening and surmountable coercion, when the victim can choose what to do in a given situation.
Mental coercion is often associated with intimidation, threats of violence, harm to health, and death. All this is aimed at the consciousness and will of the person, with the goal of breaking him and forcing him to commit an illegal act.
We recommend! The objective side of the crime
A person develops fear and apprehension for himself and his loved ones, as a result of which he commits a crime. But unlike physical coercion, here there is the possibility of choosing behavior, that is, surmountable coercion.
A very common case of coercion is the situation with officials who, under the threat of reprisal or harm to the life and health of loved ones, commit a crime: make unlawful decisions, influence subordinates, appropriate funds to which they have access, provide access to citizen data bases, and other cases .
Another comment on Art. 40 of the Criminal Code of the Russian Federation
1. The criminal law distinguishes, firstly, irresistible physical coercion (Part 1) and, secondly, surmountable physical coercion and mental coercion (Part 2).
2. Irresistible physical coercion, i.e. the present and real inability of a person to direct his actions due to the complete suppression of his will excludes the criminal liability of such a person due to the fact that the act committed by him does not correspond to his will. In this case, the person is not able to resist coercion (he is tied up, locked up, tortured, etc.).
The coercer is subject to criminal liability for the crime committed as a mediocre performer (Part 2 of Article 33 of the Criminal Code of the Russian Federation).
3. Overcome physical coercion and mental coercion exclude the criminal liability of a person if, firstly, the coercion was present and real and, secondly, actions under duress comply with the conditions of legality of extreme necessity (Article 39 of the Criminal Code of the Russian Federation), in particular, the condition proportionality of actions in a state of extreme necessity.
Signs of physical and mental coercion
The first sign will be the presence of coercion itself, that is, an action forcing one to act in a certain way in order to avoid threats and reprisals against oneself or loved ones.
That is, in court, a citizen must present an indisputable fact that he acted unconsciously, under the influence of another person.
The second sign is the inability of the victim to realize what is happening, caused by injuries or direct threats and intimidation. Depending on the psychology of the individual, someone is susceptible to more or less influence and intimidation.
The third sign is that a person commits an unlawful and socially dangerous act.
The fourth sign is proportionality, which is similar to extreme necessity, that is, the harm caused must be less than that prevented.
For example, he committed theft or robbery in order to save the life or health of close relatives.
Threatened with rape. What to do?
Sexual violence is recognized as one of the most serious crimes; the provisions of Art. 131 and art. 132 of the Criminal Code of the Russian Federation. The key signs of rape that allow for prosecution are:
- sexual contact in a natural form, and other violent actions are considered within the framework of Art. 132 of the Criminal Code of the Russian Federation;
- lack of consent on the part of the victim, which is expressed in physical violence, the threat of its use or the helplessness of the victim;
- physical force or threat can be addressed not only to the victim, but also to other persons.
Note! Article 131 of the Criminal Code of the Russian Federation allows only a woman to be recognized as a victim. To bring to justice for violation of the sexual integrity of a male person, the provisions of Art. 132 of the Criminal Code of the Russian Federation.
The fact of rape is only sexual intercourse committed under duress or threat. Also, criminal sanctions will be applied to a rapist whose criminal plan was not completed for reasons beyond his control (in this case, he will be tried for attempted rape). The fact of uttering a threat of sexual violence is not included in the criminal offense of Art. 131 of the Criminal Code of the Russian Federation, if the offender did not attempt to engage in sexual intercourse under duress.
This does not mean that threats of rape are not punishable. For this purpose Art. 133 of the Criminal Code of the Russian Federation, which provides for such forms of coercion to sexual contact as blackmail, threat of destruction of property, etc. The punishment for such illegal behavior will be significantly lower, since the fact of an assault on sexual integrity did not take place.
What to do if rape occurs under threat?
If the threat of the criminal was of a violent nature, including against the victim’s relatives, sanctions will be applied according to the general rules of Art. 131 of the Criminal Code of the Russian Federation. In this case, the following nuances must be taken into account:
- if the threat did not involve the actual use of physical force, the fact of rape cannot be proven. For example, if the offender made a general threat, did not display a weapon, or did not take physical force to engage in sexual intercourse;
- sexual contact will not be considered rape if the threat was not violent. Punishment will follow only under Art. 133 of the Criminal Code of the Russian Federation;
- For threats with coercion to sexual intercourse, a female subject can also be held accountable, while rape can only be committed by a man.
In the process of proving the facts of the threat, the actions of the victim will also be assessed. Often, statements to the police are filed for the purpose of blackmail in order to receive a monetary reward for refusing to prosecute. If such facts are established, the alleged victim himself will be held accountable for knowingly false denunciation.
Proof
Prosecuting a rape threat does not require waiting for the perpetrator to carry out his plan. It is enough to properly prove or record all episodes of threats expressed, which can be expressed in the following forms:
- blackmail, i.e. threat to disseminate certain information that is defamatory in nature about the victim or his relatives;
- threat of damage or complete destruction of the victim’s property, or unlawful seizure of it (including funds);
- the use of any forms of dependence of the victim on the offender (for example, if the offender is the only breadwinner for the victim).
Note! For punishment under Art. 133 of the Criminal Code of the Russian Federation, one fact of the threat expressed is enough. If, as a result of the above threats, the victim agrees to have sexual intercourse, such actions will not be considered rape under Art. 131 of the Criminal Code of the Russian Federation.
Evidence of the threat will be oral or written messages, including anonymous ones. Charge under Art. 133 of the Criminal Code of the Russian Federation refers to cases of public prosecution. Therefore, from the moment a statement is received from the victim, all investigative actions will be carried out by law enforcement agencies.
How much will they give for threatening rape if the rape itself was avoided?
If the offender expressed a threat of physical violence and attempted to engage in sexual contact, he will be prosecuted under Art. 131 or Art. 132 of the Criminal Code of the Russian Federation. The choice of article depends on the form of sexual intercourse that the rapist planned to carry out. It is important that the threat expressed is real and is perceived by the victim in the same way. Under such circumstances, if the rape did not actually take place for reasons beyond the control of the offender, the punishment will follow for the attempt.
According to the rules of Art. 66 of the Criminal Code of the Russian Federation, the sanction for attempted rape or other acts of a sexual nature cannot exceed ¾ of the maximum penalty fixed in Articles 131 or 132 of the Criminal Code of the Russian Federation. In this case, the circumstances due to which the criminal was unable to realize his plan will be taken into account.
