ST 28 of the Criminal Code of the Russian Federation.
1. An act is considered committed innocently if the person who committed it did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them.
2. An act is also considered committed innocently if the person who committed it, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload.
Commentary to Art. 28 Criminal Code
1. Innocent causing of harm means the absence of guilt in the actions of a person and, as a consequence, the absence of the subjective side as an element of the crime.
2. Part 1 contains a definition of a subjective case or incident associated with the absence on the part of the person of objective and subjective criteria of negligence or one of them. In other words, the case is that a person, due to the circumstances of the case, in crimes with a formal composition should not and (or) cannot be aware of the social danger of his actions (inaction), and in crimes with a material composition he should not and (or) cannot be aware the social danger of the actions (inactions) performed or to foresee the possibility of socially dangerous consequences.
3. Part 2 is essentially not related to guilt, but presupposes the absence of a crime due to the absence of a volitional sign in the person’s act: a person cannot avoid committing a crime due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload.
Liability for harm
When considering the concept of innocent causing of harm, it is worth highlighting an important circumstance: criminal liability for causing harm in accordance with the law does not arise if, during the consideration of the case, it is revealed that the actions of the person held accountable fall under the category of actions of innocent causing of harm.
The types of actions listed in Article 28 of the Criminal Code and falling under innocent causing of harm are exhaustive, however, in order to recognize such actions as innocent, it is necessary to carefully establish and prove the fact that the person could not understand the meaning of the action committed or could not foresee the occurrence of harmful consequences.
Also in practice, difficulties arise in proving the fact that a person is unable to prevent harmful consequences in extreme conditions or in the presence of an emotional disorder (overload). It is worth noting here that the concept of an extreme situation or extreme emotional disorder will be purely individual for each specific person in a particular situation at a certain point in time, since there are no general criteria suitable for a wide range of people in such a situation and objectively cannot exist.
Thus, the law excludes criminal liability in the event that the harm was caused innocently, but the very fact that the harm was caused innocently must be carefully proven and confirmed.
Second commentary to Art. 28 of the Criminal Code of the Russian Federation
1. In part 1 of Art. 28 of the Criminal Code of the Russian Federation enshrines this type of innocent causing of harm, which in the theory of criminal law is called a subjective case, or “incident”.
2. In relation to crimes with formal elements, this means that the person who committed a socially dangerous act did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction). This kind of “incident” is, for example, the sale of a counterfeit banknote by a person who did not realize and, due to the circumstances of the case, could not realize that the bill was counterfeit.
3. In relation to crimes with a material element, the subjective case is that the person who committed a socially dangerous act did not foresee the possibility of socially dangerous consequences occurring and, due to the circumstances of the case, should not or could not have foreseen them. This type of subjective case is distinguished from negligence by the absence of either both or at least one of its criteria.
4. In part 2 of Art. 28 of the Criminal Code of the Russian Federation establishes a new, previously unknown to the law and judicial practice, type of innocent infliction of harm. It is characterized by the fact that the person who committed a socially dangerous act, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload.
5. Firstly, the inability to prevent harmful consequences that are covered by the foresight of the actor excludes criminal liability if it is caused by a discrepancy between the psychophysiological qualities of the harm-doer and the requirements of extreme conditions, i.e. such unexpectedly arisen or changed situations for which a person is not prepared and, due to his psychophysiological qualities, is unable to make an adequate decision and find a way to prevent harmful consequences (for example, in an accident due to design defects or manufacturing defects of a machine or mechanism; in a situation of natural disaster or emergency situations; in the event of an emergency when performing work by divers, speleologists, while mountaineering, etc.).
6. Secondly, the act is considered innocent if the impossibility of preventing socially dangerous consequences is due to the discrepancy between the psychophysiological qualities of the harm-doer and his neuropsychic overload (fatigue, physical or mental stress as a result of hard physical work, long-term continuous intellectual work, for example, when working as a pilot aircraft or electric locomotive driver for the second shift in a row).
7. Establishing a discrepancy between the psychophysiological qualities of the operator, both the requirements of extreme conditions and neuropsychic overloads, should be the subject of a mandatory study of forensic psychological examination.
Concept of innocent harm
Today, the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) provides for the element of guilt in the crime as a defining circumstance, the absence of which excludes criminal liability. Thus, Article 5 of the Criminal Code of the Russian Federation states that a person can be recognized as having committed a crime and subsequently brought to justice only if his guilt is present in the committed act, and forms of guilt include both direct intent and indirect (crime due to criminal negligence or frivolity).
Also, criminal law (including the Criminal Code of the Russian Federation) contains such a concept as innocent causing of harm.
Article 28 of the Criminal Code of the Russian Federation gives meaning to the concept of innocent causing of harm, and also reveals the types and forms of causing such harm. According to Article 28 of the Criminal Code of the Russian Federation, an act is considered committed innocently when the person who committed the crime could not and should not have realized the significance of the actions being committed. Another important condition that allows us to consider harm caused innocently is the lack of understanding of the onset of harmful consequences by the person who committed such harm.
In a literal sense, this concept has the following meaning: a crime committed is recognized as committed innocently if the potential offender did not know and could not know that his actions could cause any harm and jeopardize public safety and interests protected by law.
Characteristics of varieties
The first type of innocent harm, which is regulated by Article 28 of the Criminal Code of the Russian Federation, excludes the criminal liability of a citizen for his actions due to the fact that the person did not realize that the act he committed could lead to dangerous consequences.
Such dangerous situations include cases where people suffer and die as a result of accidental actions . For example:
- As a result of an accident on the road, the unconscious driver was trapped in a car that caught fire.
A young guy rushed to his aid and, using physical force, began jerking the victim out of the car. Having freed the driver, he pulled him away from the burning car and called an ambulance. But by the time the doctors arrived, the victim died as a result of rupture of soft tissues and arteries. Having shown courage and rushed to help the victim, the young man did not realize that his actions to save the person would serve as the true cause of death of the driver of the vehicle. Investigators, of course, will not find any crime in his actions. - Returning home late in the evening, the owner of the apartment noticed a strong smell of gas in the living room.
Deciding to establish the reason, he arbitrarily pressed the switch at the front door. An explosion was heard, the ceiling collapsed, neighboring apartments were damaged, the residents of which, like the owner himself, received serious burns and injuries of varying severity. The homeowner’s actions were usual: he came home and turned on the light. The person did not realize that a spark that accidentally slipped when turning on the light could cause a big disaster, where he himself, as well as the people living nearby, would suffer. But the citizen’s actions do not constitute a crime, and he will not incur criminal liability.
The second type of innocent harm involves the inability of a citizen to foresee a sudden danger as a result of his actions. Examples of such cases are not uncommon and are very common in our daily lives.
- A car that suddenly braked, due to a pedestrian quickly running out onto the roadway, caused a collision of several cars following it at once, where people died.
By saving the life of the pedestrian, the driver did the right thing, but in the current extreme situation it was impossible to foresee the emergency situation that had arisen with the cars driving behind him. A tragedy occurred that claimed human lives, but there is no corpus delicti in the actions of the driver who suddenly braked, and Article 28 of the Criminal Code of the Russian Federation exempts the citizen from criminal liability. - A cigarette butt accidentally thrown into an empty barrel caused a tragedy, as a result of which a person passing by died.
Gasoline vapors accumulated in an empty container caused an explosion, and pieces of metal flying in all directions mortally wounded a passerby. The culprit of the tragedy himself also suffered, but just as in previous cases, there is no corpus delicti in the person’s actions. The citizen could not have foreseen the dangerous situation that would result from his action.
The third type of innocent harm, which is reflected in Article 28 of the Criminal Code of the Russian Federation, is characterized by special cases where, as a result of actions or inaction, a citizen can foresee the creation of a dangerous situation.
It may be impossible to prevent a tragedy due to various reasons caused by high nervous stress, mental disorder, or the absence of certain psychophysiological qualities in the current situation.
An example would be extreme cases and prevailing circumstances that preclude a citizen from taking the necessary measures to prevent a dangerous situation. For example:
- A pedestrian suddenly running out in front of a car in a place that is not intended for crossing the road can be predicted, but a collision with a person in this case is almost impossible to prevent.
A suddenly created extreme situation leaves no time for thought, the driver instantly and unexpectedly receives great nervous strain and stress, and it is possible to avoid a tragedy only by luck. There is no corpus delicti in the actions of a driver who quickly braked but hit a pedestrian, and he does not bear criminal liability for his actions in such a situation. - A person working two shifts in a row under the orders of the administration has all the signs of overwork and is unable to adequately assess and respond to his actions.
In extreme circumstances, where harm will be caused to other citizens, this fact will be taken into account by the investigation, and a particular citizen may not bear criminal liability for his activities.
At first glance, all three types of innocent harm contain some elements of negligent behavior and careless actions, but they are not considered negligence after a detailed expert analysis and thorough investigation.
Be prepared for the fact that in some cases you will not be able to prove your innocence. Depending on the type of damage caused, you will be given the appropriate punishment:
- Causing grievous bodily harm: through negligence and in a state of passion.
- Causing average harm to health through negligence and unintentionally - here.
- Causing slight harm to health through negligence and unintentionally - more details here.
