Classification of crimes taking into account factual errors

Legal and factual errors: types, characteristics and criminal legal significance

The occurrence of a more serious consequence than the subject intended excludes liability for its intentional infliction.
In cases where the infliction of a more serious consequence was covered by careless fault, the person, along with responsibility for the intentional infliction (or attempt to inflict) the intended consequence, is also liable for the careless infliction of a more serious consequences, if provided by law. There are two possible qualification options

An act is qualified according to one criminal law norm if it, while establishing liability for the intentional infliction of some consequences, provides for careless infliction of more serious consequences as a qualifying feature (Part 2 of Article 167, Part 4 of Article 111 of the Criminal Code). If there is no such rule in the Criminal Code (for example, about abuse of power, which through negligence resulted in the death of the victim), as well as in cases of a real set of crimes (trying to intentionally cause serious harm to the health of one person, the perpetrator through negligence causes the death of another person), the act must be qualified under the articles of the Criminal Code on the intentional infliction (or attempted infliction) of the intended consequence (Part 1 of Article 111 of the Criminal Code) and on the careless infliction of a more serious consequence that actually occurred (Article 109 of the Criminal Code).

REPEATED VIOLATION OF THE PROCEDURE FOR CONDUCTING MEETINGS

FROM PRACTICE.

The Basmanny District Court of Moscow found D. guilty of repeated violation of the established procedure for holding a meeting, meeting, demonstration, procession and picketing, that is, of committing a crime under Art. 212.1 of the Criminal Code of the Russian Federation (sentence dated December 7, 2015). The court sentenced him to 3 years in prison.

The Moscow City Court reduced his sentence to 2 years and 6 months in prison (appeal ruling dated March 31, 2016).

The judge of the Supreme Court of the Russian Federation refused D. to review these court decisions (resolution dated December 19, 2016).

The Constitutional Court of the Russian Federation, considering D.’s complaint, noted the following. In a democratic society, freedom of assembly is a fundamental right and, along with freedom of thought, conscience and religion, forms the basis of such a society and is not subject to restrictive interpretation. The state must refrain from using arbitrary measures that could violate the right to peaceful public actions, and does not have complete freedom of action even if their participants violate the established rules for holding meetings, rallies, demonstrations, processions and picketing. Public authorities must show a certain tolerance towards peaceful assemblies even when they may cause some disruption to everyday life, including disruption to traffic, since otherwise freedom of assembly would be deprived of its essence. Any measures that impede freedom of assembly and freedom of expression, unless they incite violence or violate democratic principles, do a disservice to, and even threaten, democracy.

When deciding on the criminalization of a violation of the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picketing, if it is committed by a person repeatedly, it is important to take into account that in the legal system of Russia, a crime - unlike other offenses - must be characterized by a criminal public danger, in the absence of which, even an act that formally falls under the criteria of a criminal offense cannot be considered as such (Part 2 of Article 14 of the Criminal Code of the Russian Federation). As a result, the federal legislator, when determining which acts dangerous to the individual, society and the state are recognized as crimes (Part 2 of Article 2 of the Criminal Code of the Russian Federation), is obliged to avoid excessive use of criminal legal repression, remembering that the basis for the criminality of unlawful acts can be only circumstances that together objectively confirm the criminal degree of their social danger, including the scale of prevalence and growth dynamics of such acts, the significance of the legally protected values ​​that they encroach on, the significance of the harm they cause, as well as the impossibility of overcoming them using other legal means ( Resolution of the Constitutional Court of the Russian Federation dated June 27, 2005 No. 7-P).

The legislative structure of the crime underlying the criminalization of repeated violations of the established procedure for organizing or holding a public event differs from most other crimes involving administrative prejudice (Articles 116.1, 151.1, 157, 158.1, 215.4 and 264.1 of the Criminal Code of the Russian Federation) in that it links the offense criminal legal consequences of the relevant unlawful act not with its commission by a person subjected to administrative punishment for a similar offense, but with the previous bringing of such a person to administrative liability. As a result, law enforcement agencies, including courts, relying on a formal dogmatic approach to understanding the normative content of the provisions of Art. 212.1 of the Criminal Code of the Russian Federation, without taking into account their place in the system of current legal regulation, they may believe that in order to qualify an unlawful act under this article, administrative punishment of a person for previously committed administrative offenses provided for in Art. 20.2 of the Code of Administrative Offenses of the Russian Federation, and it is sufficient to establish the very facts of his bringing to administrative responsibility on the basis of this article more than twice, confirmed by the relevant judicial acts, even if they did not enter into legal force (the materials of D.’s criminal case indicate that this is precisely the interpretation of Article 212.1 All courts involved in it adhered to the Criminal Code of the Russian Federation).

Revealing the constitutional and legal meaning of Art. 90 of the Code of Criminal Procedure of the Russian Federation in relation to the prejudicial significance of decisions made in civil proceedings, the Constitutional Court of the Russian Federation in its resolution dated December 21, 2011 No. 30-P came to the conclusion that the limits of the prejudiciality of a court decision are objectively determined by the fact that those established by the court within the scope of the subject matter of consideration In a case, the facts in their legal essence may have a different meaning as an element of the subject of proof in another case, since the subjects of proof in different types of legal proceedings do not coincide, and the courts in their study are limited by their competence within a specific type of legal proceeding. Based on this, court decisions adopted in civil cases and which have entered into legal force cannot be perceived as prejudging the conclusions of the court in criminal proceedings regarding whether the act contains signs of a crime, as well as the guilt of the person brought to criminal liability, which must be based on all body of evidence in a criminal case.

Bringing a person to criminal liability for a crime under this article is possible only if his violation of the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picket entailed causing or a real threat of causing harm to the health of citizens, property of individuals or legal entities persons, the environment, public order, public safety or other constitutionally protected values.

The possibility of bringing to criminal liability for violating the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picketing of a person in respect of whom at the time of committing the act charged with him there were no judicial acts that had entered into legal force on prosecution at least three times within 180 days is excluded to administrative liability for administrative offenses provided for in Art. 20.2 Code of Administrative Offenses of the Russian Federation.

Factual circumstances established by judicial acts that have entered into legal force in cases of administrative offenses do not in themselves predetermine the court's conclusions about the guilt of the person in respect of whom they were made for committing the crime provided for in this article, which must be established by the court in accordance with the criminal procedure rules. legal procedures on the basis of the entire body of evidence, including those not examined during the consideration of cases of administrative offenses committed by this person.

A person can be sentenced to imprisonment only on the condition that his violation of the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picket resulted in the public event losing its peaceful nature (if the corresponding violation does not fall under the elements of a crime under Art. 212 “Mass riots” of the Criminal Code of the Russian Federation) or causing or a real threat of causing significant harm to the health of citizens, property of individuals or legal entities, the environment, public order, public safety or other constitutionally protected values, despite the fact that without imposing this type of punishment it is impossible to ensure the achievement purposes of criminal liability for the crime provided for in this article (Resolution of the Constitutional Court of the Russian Federation dated February 10, 2017 No. 2-P).

The Presidium of the Supreme Court of the Russian Federation canceled all court decisions against D. and terminated the criminal case on the basis of clause 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation - due to the absence of corpus delicti in the act. The Supreme Court released D. from custody and recognized his right to rehabilitation in accordance with paragraph 4 of Part 2 of Art. 133 of the Code of Criminal Procedure of the Russian Federation (resolution dated February 22, 2017 No. 43-P17).

Factual error

This classification of errors includes a person’s incorrect assessment of the actual content of signs representing the subject and objective side of criminal actions. It is divided into essential and non-essential. If the error is significant (legally significant signs of a crime), the nature of the act and the measure of responsibility for the actions taken are adjusted.

Such errors include:

1. Error in the object of encroachment. The object in relation to which the damage was caused is mistakenly recognized by the culprit as the target of criminal actions, but in fact it is different from the one that is the motivation for the crime. For example: a criminal entered a pharmacy store to steal medications containing a narcotic component. I didn’t have a table of medications. He made a mistake and actually stole a different drug. When qualifying this crime, it is taken into account that it was completed, and the intent indicates an attempt on narcotic drugs. Thus, a person is subject to criminal liability specifically for attempted theft of medicines containing drugs. When these errors are discovered, qualification is carried out for each case individually.
2. Incorrect identification of the victim. The subject of the error is causing harm to a person who is not a predetermined victim of the crime. Such an error does not amend the culpability and qualifications of the crime if the alleged victim does not belong to the category of special characteristics of the crime. For example: a private person received injuries incompatible with life, and the intention was to commit a crime against a government official in order to terminate the exercise of his powers.
3. Choosing a means for a criminal act. The essence of the error is the use of a crime other than the planned method or object of its commission. When criminally qualifying, it is taken into account whether the crime was committed by “insignificant means” (prayers and rituals were used for murder) or whether the subject of the crime was replaced (a kitchen knife with a dagger).
4. Causal relationship. To qualify a crime, the criminal’s awareness of the connection between his action (for example, stabbing a person) and the onset of consequences (the death of the victim) is insignificant. An error can only be taken into account if the offender has mental disorders, established in a certain legal way.

Currently, the country's criminal legislation does not have sections establishing the definition and significant role of error.

But the discussion of criminal legislation and work on amendments also concerns the possibility of including these provisions in the future.

see also

• Error
• The subjective side of the crime

This page was last edited on June 10, 2021 at 1:30 pm.

Case studies

The practice of conducting cases involving criminal offenses indicates that their qualification is made taking into account the totality of circumstances, including signs of errors, for example:

1. A type of erroneous judgment about the object of a crime. Citizen A gives a bribe to the head of a private company (citizen B), assuming that it will end up in the hands of a government official (government employee) - the crime will be classified as a bribe to an official under Article 291 of the Criminal Code.
2. Citizen S. stole a firearm from citizen C., considering theft a crime. But he mistakenly failed to appreciate the responsibility for attacks on public safety. This fact can be attributed to a legal error and liability will be assigned to him under Article 226 of the Criminal Code.
3. Citizen I., frightening Citizen Yu., pointed a firearm at him, being sure that it had no cartridges. After pressing the trigger guard, a shot was fired, causing a serious injury. This may mean that an error in assessing the circumstances excludes murderous intent, but is a consequence of negligence. Citizen I. was held accountable for negligence.
4. Citizens K. and L. were returning from a cafe where they had been drinking alcoholic beverages. On the way we had an argument. Gr. K. inflicted multiple wounds on L. with an awl in the head and neck area. Convinced that he had committed a murder, he threw L. into the lake to conceal it. An examination by a forensic doctor showed that L.’s death was caused by water entering the lungs. Citizen K. was convicted of premeditated murder. There is an error of incorrect perception of the causes and consequences of the event.

One of the tasks of criminal proceedings is to guarantee the legality of decisions made and compliance with the rules of law.

Eliminating the problem of identifying an error at any stage of procedural actions makes it possible to take timely measures to eliminate it in the form of changing the preventive measure, terminating the criminal case, or issuing an acquittal by the court.

DISCLOSURE OF THE SECRET OF THE INVESTIGATION

The secrecy of the preliminary investigation is the key to its effectiveness. There is a mechanism for criminal prosecution for disclosure of preliminary investigation data. In this case, we are talking only about information that is important for the prosecution, the loss of secrecy of which entails socially dangerous consequences. It is also obvious that the dissemination of information leaked by the preliminary investigation bodies themselves cannot be regarded as disclosure of preliminary investigation data.

The above means that the corpus delicti under Art. 310 of the Criminal Code of the Russian Federation, is formal only at first glance. Before bringing charges under this article, the preliminary investigation authorities and the prosecutor must assess the degree of public danger of the crime. Courts that hear cases of such crimes should also remember this.

FROM PRACTICE.

The preliminary investigation authorities accused lawyer D. of unauthorizedly disclosing the data of the preliminary investigation on November 6, 2013 (Article 310 of the Criminal Code of the Russian Federation). For committing this crime, by the verdict of the magistrate of court district No. 7 of the city of Abakan, Republic of Khakassia, dated 02/04/2015, D. was sentenced to 400 hours of compulsory labor. The appellate instance left the verdict unchanged (resolution of the Abakan City Court dated April 24, 2015).

Lawyer G. M. Reznik took over the defense of his colleague.

On November 23, 2015, a judge of the Supreme Court of the Russian Federation refused to transfer the cassation appeal to the defense for consideration at a court hearing.

On May 23, 2016, this resolution was canceled by the Deputy Chairman of the Supreme Court of the Russian Federation V. A. Davydov and the case was sent for consideration by cassation to the Presidium of the Supreme Court of the Republic of Khakassia on the following grounds.

Qualifying D.’s actions under Art. 310 of the Criminal Code of the Russian Federation, the courts of the first and second instances proceeded from purely formal grounds that entail criminal liability. They saw the presence of corpus delicti in the very fact of disclosure of preliminary investigation data by a person whom the investigator, in accordance with the procedure established by law, warned about the inadmissibility of their disclosure.

Within the meaning of the criminal law, when deciding whether an offense contains elements of the crime being analyzed, one should not only take into account the very fact of disclosure of preliminary investigation data, but also take into account the essence of the disclosed data, time, place, specific circumstances of the case, the actions of the perpetrator, the nature and degree of public danger what he did. In cases where the data of the preliminary investigation became public before they were disclosed by the person brought to criminal liability, it is also necessary to take into account the circumstances under which these data were made public.

The court of first instance found that the investigator's petition to select a preventive measure in the form of detention in relation to the accused T., whose defense lawyer was D., was considered in open court. The investigator participating in the court hearing, in support of the petition, presented to the court copies of the protocols of interrogations of the suspect and the witness, which were read out during the consideration of the material in the presence of persons who were not participants in the criminal proceedings. At the same time, the investigator did not raise before the court the question of considering the petition in a closed court session.

In addition, the court found that the materials of the criminal case against T. presented by the investigator in open court became the property of a wide range of people: numerous visitors to the trial, people with whom they communicated, a journalist present at the hearing, as well as Internet users - magazine readers "Phoenix" and "New Focus".

In such circumstances, the court’s conclusions about the existence of a crime under Art. 310 of the Criminal Code of the Russian Federation, the actions of D., who familiarized citizens with the data of the preliminary investigation after they became public at the court hearing, cannot be considered correct (resolution to cancel the judge’s decision and transfer the cassation appeal for consideration at the court hearing of the cassation court dated 23.05 .2016 No. 55-UD16-1).

The Presidium of the Supreme Court of the Republic of Khakassia, despite the objections of the first deputy prosecutor of the Republic, overturned all court decisions taken in the case of D. and terminated the proceedings in the case due to the lack of corpus delicti. The court recognized the right to rehabilitation for illegally convicted D. (resolution No. 44–46/2016 dated June 23, 2016).

Legal error

A legal error is a person’s incorrect understanding of the legal assessment of the act he has committed, or the legal liability associated with its commission[1]. A legal error can be of the following types[1]:

1. An error in criminal law prohibition is an incorrect assessment of an act as non-criminal, when in fact its commission is prohibited by criminal law under threat of punishment. In most cases, to resolve the issue of liability for such an error, the principle “ignorance of the law does not exempt from liability” is applied. Criminal law establishes liability for assault due to the fact that the act actually causes harm to social relations. Even if the perpetrator does not realize the criminal wrongfulness of the act, he can and should be aware that he is causing harm to objects of criminal legal protection. Liability can be excluded only in cases where the person should not and could not have known, for example, about changes in the law that criminalized a certain act[2]. In the criminal legislation of many states (for example, Germany) such provisions are explicitly enshrined[3], while in other countries, including Russia, the practice of releasing a person from liability for such acts is based on general provisions on guilt[4].
2. An imaginary crime is an erroneous assessment of an act as criminal, whereas the criminal law does not provide for such a criminal act. Such an act does not have the properties of social danger and illegality, cannot be considered guilty and therefore does not entail criminal liability.
3. A person’s incorrect understanding of the legal consequences of the act (qualification, type and amount of punishment). Awareness of these elements is not included in the content of a person’s guilt and therefore does not affect its form and appearance, does not exclude it.

In general, we can say that a legal error almost never affects the measure of responsibility applied to a person.

Law of misrepresentation in criminal proceedings

One of the systemic problems of law enforcement remains the issuance of a guilty verdict based solely on the testimony of the parties - oral information provided by participants in criminal proceedings.

Of course, as evidence in accordance with Art. 74 of the Code of Criminal Procedure of the Russian Federation allows the testimony of the suspect (accused), victim and witness. The Code also provides for some mechanisms regulating the use of oral information provided in the process of evidence. Yes, Art. 75 of the Code of Criminal Procedure includes as inadmissible evidence the testimony of a suspect (accused), given by him during pre-trial proceedings in a criminal case in the absence of a defense lawyer, including cases of refusal of a lawyer, and not confirmed by the suspect (accused) in court, as well as the testimony of a victim or witness based on guess, assumption, rumor, including testimony of a witness who cannot indicate the source of his knowledge. Article 77 of the Code of Criminal Procedure prohibits the prosecution of a person who has admitted guilt if his guilt is not confirmed by the totality of evidence in the case.

The law also obliges the verification of evidence during the process of proof. According to Art. 88 of the Code of Criminal Procedure, such a check is carried out (by the inquirer, investigator, prosecutor, court) by comparing the evidence with those that already exist in the criminal case, as well as identifying their sources and obtaining other evidence that confirms or refutes what is being verified. Each such evidence is subject to assessment from the point of view of relevance, admissibility and reliability, and all collected evidence is collectively checked for compliance with the criterion of sufficiency for resolving a criminal case.

The reliability of evidence is its compliance with objective reality, admissibility is the legality of collecting evidence, recording it and attaching it to the case file, and relevance is the relationship of evidence to a specific criminal case.

If a criminal case with an indictment is sent to the court, the latter, based on the collected and examined evidence, issues a verdict or other judicial act. According to current legislation, common sense and the principles of fairness, a court decision must be legal, reasonable, fair, logical, understandable and clear. Based on the collected evidence, the court, making a decision in accordance with Art. 299 of the Code of Criminal Procedure decides whether it has been proven that the act of which the defendant is accused took place and it was he who committed it, as well as other issues related to the correct qualification of the act, the application of punishment or release from punishment. The final conclusion of the court must be proven, beyond doubt and therefore not requiring further justification.

However, are the specified mechanisms regulating the use of oral information communicated in the process of proof sufficient to make factually justified and consistent with the principle of “verifiability” court decisions in criminal proceedings? Is oral information provided to the investigation and court sufficient to accuse and convict a person of committing a crime?

To answer these questions, let us consider in more detail the essence and nature of oral information and testimony, including traces of a crime, which act as evidence of one or another circumstance in a criminal trial.

From traceology it is known that traces of a crime are any changes in the environment that arose as a result of the commission of a crime. Traces of a crime, in turn, are classified into material and ideal. The first includes “imprints” of the event on any material objects: objects, documents, the body of the victim, etc. Ideal traces are understood as imprints of an event in the consciousness and memory of the criminal, victim, witnesses and other people.

As is customary in legal psychology, in order to correctly assess “ideal traces,” which include oral information and testimony, the investigator “needs to adequately reflect the positions and real awareness of individuals and create psychological prerequisites for information communication.”

In this case, situations may arise when the person being interrogated:

• has the required information, but hides it;
• has the necessary information, but deliberately distorts it;
• does not have the required information;
• conscientiously conveys information, but it is not adequate to reality (due to distortions of perception and personal reconstruction of the material in the subject’s memory)1.

Thus, it is almost impossible to obtain reliable information from oral information without distortion, even if the interrogated person is conscientious in its transmission: it may still not correspond to reality, since it always passes through personal subjective perception and personal reconstruction (distortion of the material in the subject’s memory).

The law of information distortion is applied and taken into account in practice in various areas of human life. In particular, it is actively used in management psychology. The essence of this law is that the meaning of information that is of a “managerial” nature (directives, orders, instructions, etc.) can change in the process of transmission and movement “from top to bottom.” The degree of distortion of meaning is directly proportional to the number of channels and transmission links: the more employees gain access to information and transmit it to other people, the more the final meaning differs from the original. In addition, it is worth noting that information can change in the direction of either understating the reliability of facts or exaggerating them.

The reasons for the distortion of information are various. Among the main ones are, firstly, the polysemy of the language in which management information is transmitted. No matter how strict or precise the concepts used, there is always the possibility of different interpretations of the same message, due to differences in education, intellectual development, professionalism of the subjects and characteristics of the objects of management. Secondly, incomplete information. If the information is incomplete or access to it is limited, and the need of subordinates to obtain operational information is not fully satisfied, people inevitably begin to speculate, supplement what they know, relying on unverified facts and their own guesses. The level of qualifications of the employee presenting the information, the presence of emotional stress (fear of punishment, anger, envy, etc.) or prejudice towards the persons or phenomena about which the information is being transmitted are also important2.

Thus, taking into account the law of distortion of information, passing a conviction on the basis of only oral information provided by the participants in the process, or only ideal traces of a crime in the absence of material ones, is incorrect and unacceptable, since such an approach is highly likely to lead to a miscarriage of justice. Borrowing terminology from traceologists, we can conclude that in order to establish the objective truth in a case, checking one ideal trace with another ideal trace is clearly insufficient. Only with the help of material traces of a crime is it possible, in my opinion, to verify ideal traces and actually comply with the principles of verifiability, evaluation and reliability of evidence enshrined in the Code of Criminal Procedure.

I believe it would be advisable to enshrine such an approach when checking evidence by law. Due to insufficient legislative regulation of the application of the principles of sufficiency and verifiability of evidence, situations may arise in practice that could lead to miscarriages of justice. In particular, in the case of a confrontation between persons whose testimony is contradictory, there are no material traces of the crime, and the investigator, using his discretionary powers, takes as a basis information that is “convenient” for the prosecution; or when the court, in the absence of material evidence, accepts as the basis for a guilty verdict the testimony of the participants in the trial on the part of the prosecution, and rejects the testimony of the participants on the part of the defense, citing the fact that the accused provided false information in an attempt to avoid punishment, and the court has no reason not to trust the victim .

I also believe that it is unacceptable to use only one source of information – oral – to prove guilt. In practice, there is an approach when the testimony of the victim, in the absence of other material evidence, is simply “replicated” into other types of evidence - such as, for example, “confrontations” conducted using the discretionary powers of the investigator, “verification of testimony on the spot,” “additional interrogations” . Thus, formally the list of evidence in the case increases, but in fact the source of information is the same, and in the absence of other material data, it is impossible to verify the accuracy of the information provided by the victim.

Without in any way belittling the importance and role of testimony in criminal proceedings, I would like to draw the attention of law enforcement officers that, taking into account the law of distortion of information (distortion of perception, personal reconstruction of material, concealment, intentional distortion), testimony (oral information) is only possible versions and directions for inspection and investigation. The veracity and adequacy of oral information can only be verified during an investigation using material traces of the event.

To prove an event in the criminal legal sense, as well as to establish a cause-and-effect relationship, in addition to the ideal ones, it is necessary to find material traces (physical evidence, audio and video recordings, forged documents, fingerprints, biomaterial, shoe prints, bodily injuries, etc.). d.). For an objective investigation, if necessary, you should contact specialists and experts.

The process of proof is a complex intellectual work, but its results must be clear, indisputable, verifiable and correspond to objective reality. Modern science has a sufficient arsenal of means for collecting material evidence and methods for checking ideal traces, which, if used correctly, should solve the main problems of criminal proceedings enshrined in Art. 6 Code of Criminal Procedure. Criminal prosecution and the imposition of a fair punishment on the perpetrators correspond to the purpose of criminal proceedings to the same extent as the refusal to prosecute the innocent, releasing them from punishment, and the rehabilitation of everyone who has been unreasonably subjected to criminal prosecution.

In conclusion, I would like to recall that even the ancient peoples of the world did not perceive oral information as categorical truth and subjected it to verification in the administration of justice, although often in barbaric ways. If there is insufficient evidence, the criminal prosecution of a person should be terminated, and this should not be perceived as a mistake in the investigation, since termination of criminal prosecution due to insufficient evidence is a civilized norm.

1 Enikeev M.I. Legal psychology: textbook. St. Petersburg, 2004.

2 Cherednichenko I.P., Telnykh N.V. Psychology of management: textbook. Rostov-on-Don: Phoenix, 2004; Mitin A.N. Psychology of management: textbook. M.: Wolters Kluwer, 2010.