Crimes with two forms of guilt: qualifications, signs, responsibility

The key feature characterizing the subjective aspect of a crime is guilt. It acts as a subjective prerequisite for criminal liability.

In accordance with Article 5 of the Criminal Code, a citizen can be punished only for such illegal actions/inactions and the consequences resulting from them for which his guilt has been proven. The law prohibits liability for innocent damage.

The essence of guilt

The concept of “guilt” reflects the mental attitude of the subject to the actions that he performs and the consequences that they entail. If we consider the social aspect, then this term characterizes the reaction of a citizen to the customs and rules formed in society and the demands placed on him. A negative attitude towards them is manifested in the commission of an illegal act.

When considering the content and social essence of guilt, domestic lawyers rely on a materialistic understanding of action and consciousness, responsibility and freedom. Accordingly, guilt is recognized as a phenomenon of reality that really exists.

Domestic criminologists oppose the evaluative understanding of the term, in which it is considered a reproach addressed to the subject who committed the act.

Guilt and other signs of the composition are assessed by the investigative authorities and the court. However, this does not turn guilt into an evaluative concept. It acts as a fact of objective reality and is studied together with other circumstances in the manner prescribed by criminal procedural norms.

Types of guilt

To find a subject guilty, it is not enough to establish that it was he who committed the attack. Otherwise, objective imputation will take place, i.e. the person will be held accountable only on the basis of a connection between him and the act. In practice, it may turn out that the citizen is not at fault. For example, a person will be convicted of rape based on a “victim” clause, although in fact the sexual contact was consensual.

Part 1 of Article 24 of the Criminal Code establishes 2 types of guilt - negligence and intent. The latter can be direct or indirect. Carelessness can be expressed as carelessness or thoughtlessness. In Art. 27 of the Criminal Code of the Russian Federation talks about a special category of acts - crimes with 2 forms of guilt. Let's consider their features.

General characteristics

Such signs are:

Formal design of the main composition. Punishment is provided directly for the very fact of an act dangerous to society.
Intentionality of omission/action.
The qualified type design is material. It increases public danger due to the occurrence of more serious consequences. For example, in Part 1 of Art. 220 establishes punishment for unlawful storage, use, acquisition, destruction or transfer of radioactive elements. In part two of this norm, the material composition is already formulated. It establishes punishment for the same actions that lead to the death of a person through negligence. In general, this act is considered intentional.

Concept of double form of guilt

According to the Criminal Code, if, when committing a deliberate attack, grave consequences arose, entailing a more severe punishment by law, which were not covered by the intent of the subject, responsibility for them occurs only if the citizen foresaw the possibility of their occurrence, but, without sufficient grounds for this, arrogantly counted on their prevention. This provision is enshrined in Art. 27 of the Criminal Code of the Russian Federation. It also applies in cases where the subject did not foresee, but should have foreseen, grave consequences. This act is generally considered intentional and committed with double guilt.

Main features

The double form of guilt in criminal law is characterized by the following features:

There is an intentional act.
The crime committed entails consequences beyond the intent of the subject.
The consequences are severe and, accordingly, entail a more severe sanction.
The resulting harm and crime have a cause-and-effect relationship.
The subject's personal attitude to the consequences is expressed in frivolity or negligence.
Harm resulting from an assault is one of the mandatory elements of the committed act.

It is worth saying that the Criminal Code provides for quite a lot of crimes with double guilt. For example, intentional infliction of grievous bodily harm, rape, kidnapping, etc., through negligence, entail the death of the crime victim or other grave consequences.

Distinctive features of acts

From the above definition, we can establish the following signs of crimes with two forms of guilt:

The actions are intentional.
Consequences occur that are not covered by the intent of the subject.
The mental attitude of the attacker to the result of his actions is characterized by negligence or frivolity.
The consequences are considered severe and entail more serious punishment.
Crimes, despite the presence of consequences caused by negligence, are considered intentional.
There is a connection between a person’s behavioral acts and the resulting result.
Careless consequences act as a mandatory sign of an intentional act.

Classification

The double form of guilt and the corpus delicti may imply consequences resulting from intentional and careless actions or only careless ones.

The first category should include, for example, the act provided for in Part 4 of Article 111 of the Criminal Code. When committing such an assault, the subject intentionally causes harm to the victim, as defined in part one of the same norm; the actions of the perpetrator entail the death of the victim - careless consequences of a criminal offense. In the main offense, the consequences are provided in the same way as in the qualified offense.

The second group includes intentional acts that are considered qualified in the event of careless consequences caused by its commission. For example, the subject committed rape, which negligently resulted in the death of the victim. In the main composition, the consequences are not established as a mandatory feature, unlike in the qualified composition.

Formal designs

The second type of act is characterized by heterogeneity of mental attitude towards inaction/action, which is criminal regardless of the consequences, and to the qualifying results of the subject’s behavior. This category includes events whose main structure is formal. However, the qualifying elements include grave consequences. They may be indicated by the disposition of the norm. For example, the following formulations are present: the death of a person during an illegal abortion (third part of Article 123), during the hijacking of a watercraft/aircraft, or a train (part two of Article 211). Such consequences can also be assessed in terms of severity (major, especially large damage). Such acts combine a deliberate criminal element and a careless attitude to the qualifying consequences.

Difficulties in practice

The presence of criminal articles establishing punishment for acts with 2 forms of guilt gives rise to active discussion and entails many problems in qualification.

Crimes with double guilt have quite complex structures. This, in turn, entails many law enforcement errors.

The following points remain controversial at present:

The question of justifying the need for the existence of two different forms of guilt in one composition.
The problem of determining the age of the perpetrator of the crime provided for in the 4th part of Article 111.
Presence/absence of the possibility of attempting to commit acts with double guilt.
Questions about complicity in such crimes.

Experts' explanations

According to a number of lawyers, abandoning the design providing for liability for crimes committed with two forms of guilt, i.e., in which there is a formal composition and a qualified one, presuming the occurrence of careless consequences, would be completely justified. First of all, experts believe, recognizing such attacks as generally intentional is illogical. Secondly, such recognition, in fact, does not have significant practical significance. Neither complicity nor preliminary activity in such crimes is possible. In addition, the presence of such complex structures has no forensic significance.

The problem of qualifying crimes with two forms of guilt using the example of Part 4 of Art. 111 of the Criminal Code of the Russian Federation

Due to the great interest of the public, including the legal community, in the case of Ruslan Mirzaev, I decided to publish this article. Perhaps, after reading this publication, you will understand why Mirzaev’s case has dragged on for so long and what forensic experts and the defense and prosecution are arguing about. The article, of course, is not about the Mirzaev case, but also about Part 4 of Art. 111 of the Criminal Code of the Russian Federation. Actually, the article is a legal analysis of one sentence, against which I recently wrote a supervisory complaint. I provided assistance remotely, so don’t look for this case in the Arkhangelsk courts, and I also changed the name of the defendant (all coincidences are random).

Crimes with two forms of guilt are the most difficult to investigate. As a rule, the law enforcement officer, knowing the result of criminal consequences from the conclusion of the forensic investigation, believes that guilt has already been proven and does not bother to remember what was taught at the institute in the subject “Criminal Law”. It is this problem that leads to a common mistake - objective imputation, which is prohibited by Art. 5 of the Criminal Code of the Russian Federation. Unfortunately, the courts are no exception and make the same mistake, but the courts themselves correct these mistakes, as evidenced by the example from the review of judicial practice.

I bring to your attention an analysis of the reasoning part of the verdict using the following defense arguments as an example. At the same time, let’s remember the forms of guilt, the intellectual and volitional aspects of guilt.

Argument-1. The form of guilt in the form of negligence in the sentence is justified by the absence of guilt in premeditated murder, and not by the presence of signs of frivolity or negligence. Motivating the presence of negligence as a form of guilt in relation to the death of the victim, the court indicated in the verdict that the prosecution did not provide evidence confirming the intent to kill!?

A very strange motivation, because in court no one accused Ivanov of premeditated murder, and the death of the victim could have occurred due to innocent infliction of harm (Article 28 of the Criminal Code of the Russian Federation). At the same time, the verdict completely lacks justification for the presence of evidence of signs of frivolity or negligence in relation to the death of the victim.

Meanwhile, the court was obliged in the verdict to give reasons for which it considered that Ivanov foresaw, but arrogantly counted on preventing the death of the victim (Part 2 of Article 26 of the Criminal Code of the Russian Federation), or did not foresee the occurrence of death, but could or should have given the situation to foresee (Part 3 of Article 26 of the Criminal Code of the Russian Federation). Such motivations are completely absent from the verdict, and based on the circumstances of the case, it is impossible to draw an unambiguous and indisputable conclusion that Ivanov, based on his life experience and the victim’s lifetime condition, could have assumed that the victim would die from his injuries.

Failure to prove intent to kill cannot in itself serve as a basis for convicting a person of reckless homicide. Negligence is subject to independent proof and justification. If guilt in the form of negligence in relation to the death of the victim was not proven, Ivanov’s actions could only be qualified under Part 1 of Art. 111 of the Criminal Code of the Russian Federation, subject to the presence of evidence of intent to cause grievous bodily harm, and in the absence of such evidence, under other articles of the Criminal Code of the Russian Federation, providing for liability for battery or harm to health of mild or moderate severity.

Argument-2. The volitional element of guilt in the form of intent is absent in the sentence. Intentional infliction of grievous bodily harm, resulting through negligence in the death of the victim (Part 4 of Article 111 of the Criminal Code of the Russian Federation), should be distinguished from causing death by negligence (Article 109 of the Criminal Code of the Russian Federation).

In both cases, the attitude of the perpetrator towards death is expressed in carelessness (in the form of frivolity or negligence).

The difference is that for the imputation of Part 4 of Art. 111 of the Criminal Code of the Russian Federation it is necessary to establish not only negligence in relation to the death of the victim, but also direct or indirect intent to cause grave harm to his health. Intention, as a form of guilt, consists of an intellectual and volitional element.

The intellectual aspect includes: - awareness by the perpetrator of the socially dangerous nature of the act committed; - anticipation of socially dangerous consequences.

The volitional moment is expressed: - in the desire for these consequences to occur; - in the conscious assumption of the occurrence of these consequences.

The intellectual aspect of direct and indirect intent completely coincides. The volitional moment of intent, which records the desire for the occurrence of socially dangerous consequences or their conscious assumption, belongs to the volitional sphere of the psyche of the perpetrator.

The law (Article 25 of the Criminal Code of the Russian Federation) contains instructions on two possible types of volitional activity: the desire for the occurrence of socially dangerous consequences (this type is direct intent), or the conscious assumption of the possibility of the occurrence of such consequences (indirect intent).

The main difference between direct and indirect intent is that the subject’s volitional attitude to the consequences manifests itself in various forms.

A positive attitude towards them with direct intent is expressed in desire , and with indirect intent - in a conscious assumption or in an indifferent attitude.

Establishing the type of intent is very important for the correct classification of a crime, which is confirmed by many examples of judicial practice.

In the reasoning part of the verdict, the court came to the conclusion that serious harm to the victim’s health was intentionally caused, while pointing out that the convicted “could not help but foresee the grave consequences.”

Having come to the conclusion that the intellectual element of guilt in the form of intent was proven, the court did not indicate the proof of the volitional element of intent in the form of a desire or conscious assumption of grievous harm to health.

If there is no indication in the verdict of proof of the volitional moment of intent, the court’s conclusion about the presence of intent should be considered unfounded and unmotivated. Such a sentence is subject to cancellation or modification in favor of the convicted person.

Argument-3. The intellectual element of guilt in the form of intent in the verdict is justified only by the objective side of the crime. Motivating the presence of intent to cause grievous harm to health, the court stated in the verdict that the convicted Ivanov “while striking the victim’s head could not help but foresee the possibility of grievous harm to the health of the victim. The court comes to this conclusion based on the severity of the bodily injuries inflicted on the victim and their multiplicity.” From this it is clear that from the objective side of the crime (severity, localization, multiplicity), the court concluded: “could not help but foresee”! The use of double negatives in a court verdict certainly enhances the psychological impact when read, but adds absolutely nothing from a legal point of view.

Foresight, as an intellectual element of guilt, should be derived not so much from the objective side of the crime as from the life experience of the subject of the crime. It is life experience that gives grounds for asserting the ability to foresee the consequences of one’s actions. Thus, if the court had indicated in the verdict that Ivanov was a traumatologist or boxer, or had previously been convicted of similar actions, then this could become evidence of an intellectual element of guilt in the form of foresight. However, from the case materials we know that Ivanov had just turned 18 years old, and he had not undergone any medical training, and was not into hand-to-hand combat either, therefore he did not have sufficient life experience to foresee the grave consequences of the blows he inflicted.

All we can say is that Ivanov could or should have foreseen the onset of serious harm, with the necessary care and foresight (negligence - part 3 of article 26 of the Criminal Code of the Russian Federation). Liability for causing grievous bodily harm through negligence is provided for in Article 118 of the Criminal Code of the Russian Federation. A different interpretation is not based on the facts established in court about the personality of the defendant and his behavior during the incriminated period of time.

A similar case was described in the Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the 3rd quarter of 2007 (Bulletin No. 2 of 2008), which provides an example from Determination No. 5N-240/06 in the Polyakov case (see Appendix 1).

To summarize the above three arguments of the defense, I would like to remind you of paragraph 4 of the Plenum of the RF Armed Forces No. 1 of April 29, 1996, “On the court verdict,” where, with reference to Article 49 of the Constitution of the Russian Federation and Art. 14 of the Code of Criminal Procedure of the Russian Federation, the following explanation was given to the courts: “According to the meaning of the law, not only irremovable doubts about his guilt as a whole are interpreted in favor of the defendant, but also irremovable doubts regarding individual episodes of the charge brought, the form of guilt, the degree and nature of participation in the commission of the crime , mitigating and aggravating circumstances, etc.”

PS: Other arguments for the defense are not related to the topic of the publication, although they may also be of practical interest. I'll leave them for the next opportunity.

PPS: I involuntarily remembered how, when I was an investigator, I was involved in cases against individuals, then it was Article 108 of the Criminal Code of the RSFSR “grievous harm”, which contained Part 2 about causing death by negligence. In that code, unlike the Criminal Code of the Russian Federation, it was not written about the forms of guilt; each time I had to read scientific and practical comments in order to remember what the intellectual moment of guilt is and what the volitional moment of guilt is. At that time, my colleagues and I often argued about specific cases and discussed this or that qualification from the point of view of its proof. Now investigators, and judges too, do not bother themselves with constantly studying comments to the Criminal Code. It's a pity…

Added: 23:08 12/06/2012

Arkhangelsk criminal lawyer.

Delimitation of acts

As practice shows, most often law enforcement errors arise when classifying acts with double guilt, entailing careless and intentional consequences.

For example, the process of distinguishing between intentional infliction of grievous bodily harm (4th part of Article 111) and murder (105th Article of the Criminal Code) is accompanied by difficulties. In both the first and second cases, the victim is harmed, resulting in death. But in the first case, the assault falls into the category of crimes against health, and in the second - against life. As part of the act provided for in the 4th part of Article 111, the presence of any intent on the part of the perpetrator to cause the death of the victim is excluded.

Consequences

The results of crimes with formal offenses are described in the norms in two ways. In a number of articles they are named directly. For example, the death of a person when taken hostage or when tempted to use psychotropic/narcotic drugs. Other standards use evaluative characteristics. For example, serious harm in case of illegal abortion, other consequences. In many articles, the long-term result is the careless deprivation of the victim’s life. This construction clearly illustrates the double form of guilt with its distinctive feature - careless allowance of consequences and an intentional act.

An example of a miscarriage of justice

The perpetrator and the victim lived in an official marriage. The wife led an antisocial lifestyle, abused alcohol, often did not spend the night at home, drank her money away, and sold household possessions. All this led to quarrels between spouses.

One evening the victim came to a friend’s house, where they drank and went to bed. On the same day, the victim’s husband came to a friend’s house, pulled her out of bed and began beating her, striking various parts of her body with his feet and hands. He continued to beat her on the way home, then dragged her into the corridor and continued to strike her. Then the husband went to bed.

When he tried to wake up his wife in the morning, it turned out that she had died. The husband who beat his wife was found guilty of murder. However, this sentence is not justified, since he did not have the intention to cause the death of his wife.

Mental attitude as a sign of composition

The external manifestation of a particular crime can be complex. An act may include one or more actions. In some cases, dangerous consequences of varying severity and nature arise. Consequently, the subject’s mental attitude towards the actions/inactions committed by him can manifest itself in different ways. A citizen, for example, may wound a victim in the leg with a knife and be careless about the death that occurs as a result.

It follows from this that in practice, situations are quite possible when the reaction to a crime and to the consequences differ. The concept of an assault with a double form of guilt is based on such a discrepancy.

This manifestation of the subject’s mental attitude occurs in acts in which the purpose of the action/inaction does not coincide with the consequences that occurred. When analyzing a crime and establishing a person’s guilt, one must take into account his subjective reaction to what is happening.

conclusions

In a number of cases, when determining the degree of responsibility for a crime, the norms of the Criminal Code take into account several consequences, the subjective attitude of the perpetrator to which is not the same. An example would be the act provided for in Part 4 of Article 111 (which was already mentioned above) and Part 3 of Norm 123 of the Code (illegal abortion resulting in the death of the victim). In these situations, the attitude of the perpetrator to different consequences will indeed be different. When intentionally causing serious damage to health, the subject may be careless (careless or frivolous) about the occurrence of another consequence - the death of the victim of the assault.

The definition of two forms of guilt is of particular practical importance, since it allows one to distinguish acts from related offenses in each individual case.

Taking into account subjective characteristics, it is possible to differentiate between intentional damage to health resulting in the death of a person (4th part of article 111) and murder (105th norm) on the one hand, and on the other hand, from causing careless death (art. 109).

If the intent of the perpetrator included not only causing harm, but also depriving the victim of life, the actions should be classified as murder. If a citizen did not have the intention of causing serious damage to health, and his mental attitude towards the death of the injured person is characterized by negligence, the act is considered as causing a careless death.

Specifics

Let us consider in more detail crimes with two forms of guilt, entailing consequences that have unequal legal significance. The main structure of such acts is material. The qualifying element is a more serious consequence. The long-term results of the act significantly increase the threat to society. Such acts include:

Intentional damage/destruction of property resulting in the death of a person through negligence. This act is considered in the second part of Art. 167.
Intentional infliction of bodily harm resulting in the death of the victim. This crime is considered in part four of Art. 111.
Terrorism resulting in careless death. This act is provided for in the third part of Article 205.

These two-fault crimes have the following general characteristics:

Material construction of the act.
The presence of intent (indirect or direct) that covers the crime and the immediate (mandatory for the crime) consequences.
The long-term results of the act are more severe. They act as a qualifying characteristic.
The subject’s mental attitude to obligatory consequences is expressed in the form of intent, and to remote consequences - a careless type of guilt. In general, such an act is considered intentional.
The qualifying consequence causes damage to another direct object, different from the one to which the damage was caused in the main act. This can be explained using the example of Art. 205. According to the first part of this norm, the main object will be security in society, and according to Part 3 it is the health and life of the citizen.

Mutual guilt

The Code does not indicate the consequences of committing an act in the presence of guilt not only of the causer of the damage, but also of the victim. This concept is usually used in civil law. Meanwhile, in investigative practice situations often arise when mutual guilt is seen in a crime. In these cases, we talk about the actions of the victim and their impact on the limits of liability for the causer of damage.

Mutual guilt is the subjective attitude of persons participating in a criminal event to what happened, in which they intentionally or carelessly commit illegal actions. For example, two people who were intoxicated started a fight. As a result, they both caused serious or moderate harm to each other’s health, insulted each other, etc.

According to many lawyers, it is advisable to consolidate the concept of mutual guilt. It is also necessary at the legislative level to disclose the content of this term, to determine the degree of its influence on the limits of liability of the subjects participating in the criminal event.