The corpus delicti as the main tool for qualifying crimes

The classification of crimes is of great importance in the criminal process.
She is the guardian of the principles of legality, justice, and responsibility. It is carried out in accordance with the Criminal Code. Its fallacy may lead to the application of unreasonable penalties. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

Moscow and region: +7 (495) 662-44-36

St. Petersburg: +7 (812) 449-43-40

Content

Qualification principles come from the Latin concept qualificatio - the Romans used this term to define the quality of phenomena and objects. The methodological foundations stipulate that this concept implies the evaluation of something, the determination of qualitative characteristics. In criminal proceedings, qualification is usually called the legal consolidation and establishment of correspondence between the signs of an unlawful act and the composition.

The qualification process is implemented by establishing the actual circumstances of the action taken.

It includes the following items:

• the authors say that first of all, the circumstances influencing the characteristics of the objective signs of the act are established;
• information regarding subjective characteristics is determined;
• a suitable criminal law norm is selected that reflects the composition of the act.

The process must be implemented by the person investigating the case, judges and prosecutors. The classification of crimes is implemented in criminal law at all stages of the process.

Students at law schools can also provide a qualification, but it has no official meaning. Blanket and other types of standards form qualifications. In particular, the composition of the criminal act plays the role of a model. The circumstances of the action committed by the perpetrator are compared with it. If we consider the issue from this side, then the composition will be the only basis.

The composition is understood as a list of objective and subjective characteristics that describe criminal attacks. The act has certain characteristics, which are represented by social danger, punishability, illegality and guilt.

Scientific books contain provisions according to which qualification depends on the correct use of signs, in particular guilt, represented by intent and negligence.

Stages of qualification of crimes

Qualifying a crime is not only a logical process, but also giving a legal assessment of socially dangerous acts. Qualification acts as a result of the evaluative and cognitive mental activity of the law enforcement officer. Ultimately, the qualification of a crime must contain an exact indication of the paragraph, part, article of both the General and Special Parts of the Criminal Code of the Russian Federation.

The process of qualifying crimes includes several stages that occur in the following sequence:

• Determination of the circumstances that characterize the object and objective side of the crime.
• Determination of data that characterizes the subject and subjective side of the crime.
• Search for a rule of law that best suits the given crime. For this purpose, it is necessary to establish the correspondence between the actual circumstances of the crime committed and the elements of the crime that are provided for in a specific article.
• Consolidation of qualifications by any regulatory document or procedural act. For example, if a criminal case is initiated, the investigator issues a resolution to initiate a criminal case, where he makes a reference to the relevant article of the Criminal Code of the Russian Federation, thereby determining the qualification of the crime.

The classification of the crime may change during the criminal investigation. For example, the suspect himself can talk about new circumstances of the crime committed, name accomplices, and point out specific instruments for committing the crime. In addition, the victim's opinion can also play a role. For example, if the victim believes that significant damage was caused to him by theft and proves this, the theft will be reclassified from simple to qualified. The number of episodes in a criminal case also affects qualifications.

Principles

There is a group of principles that apply to qualifications. They are understood as fundamental ideas that fully cover the concept of qualification of crimes.

Legislation consolidates the following principles:

1. Right. This suggests that for correct qualification it is necessary to fully study all the circumstances of the committed act. In addition, the identification of factual circumstances has qualifying significance. “Criminal” authors argue that it is necessary to choose the right norm that will be applied in a given situation. It doesn’t matter what is committed, slander or theft, all existing techniques and methods will be used.
2. Accuracy. The person applying the legislation must correctly determine which norm is to be applied in a particular situation. Qualification requires an indication of the standard in accordance with which the actions of the perpetrators are assessed.
3. Completeness. Foreign authors in some situations adopt the experience of Russian scientists. This category is significant in the presence of a population. This can be either a real or an ideal variety.
4. Imputation that is subjective in nature. When assessing the crime, a civil servant must establish the guilt of the person, as well as his subjective attitude to the situation.
5. Double imputation is not allowed. The qualification of any crime indicates that the same action cannot be charged to the perpetrator twice.
6. If there are doubts, they are interpreted in favor of the guilty party. Initially, a boundary is established between removable and irreducible doubts, after which the latter are interpreted in favor of the criminal.

The competence to determine all of the listed principles and their observance belongs to those persons who are involved in resolving the issue under consideration. The publication of procedural documentation is allowed after the issue regarding qualifications has been accurately resolved.

There are numerous cases when it is subject to adjustment during the court hearing.

Logical Basics

The significance of the category under consideration is difficult to overestimate. It is the result of the mental activity of persons applying legislation in the field of criminal proceedings. In this case, logic is given due attention. Logical laws are objective in nature; they are formed regardless of the will and desires of people. Their focus is related to the stability, certainty, and quality of objects that exist in reality.

Logical laws, rules and other areas occupy an important place in qualifications. In this sense, the process is understood as a transition from one form of knowledge to another.

Knowledge will be divided into initial and subsequent.

The process has some features:

• is built on the basis of deductive inferences;
• presented in the form of mental activity;
• moves from the general to the specific.

Law enforcers use a form expressed in a simple syllogism. As a result, two judgments are formed. They are of a generally affirmative nature.

The meaning of the crime

Qualifying a crime is a complex process in which objective and subjective characteristics of the crime are determined. The disposition of norms influences the process under consideration.

The composition features traditional positions, including:

1. Objective side.
2. Subject.
3. Subjective side.
4. An object.

The concepts of the listed characteristics are considered in the theory of criminal law.

In any case, the crime is committed using all of the listed characteristics. Otherwise it doesn't exist. A norm can have a double meaning, therefore, through the described signs, the content of criminal wrongfulness is revealed. This is the essence of qualification.

It is worth paying attention to the fact that a simplified consideration of the qualifying value is not allowed. The process is presented as a creative act that compares real actions and ideal meaning. The advantage of qualification is that it is accompanied by various factors that combine life experience, cognition and intuition.

Stages

The job description provides for the need to select standards during qualification.

Including:

• an analysis is carried out regarding the actions taken, contradictions with the elements of crimes are identified;
• the task indicates the legality of actions when the signs are established precisely, and not in an approximate form;
• control provisions provide for the establishment of all signs of encroachment, which are enshrined in the article;
• the decision on the issue of competition between norms is voluntary;
• safety also includes whether the action is completed or not.

The literature provides several types of qualifications. The Code of Administrative Offenses also assumes similar positions.

Authorities must go through certain qualification stages. Initially, you need to put forward a version of what happened. This version is of a legal nature and provides for the establishment of a norm in accordance with which the act was committed.

The first stage ends with the issuance of an act through which the case is initiated.
After this, the second stage begins. It ends after the person is brought in as an accused. There may be two, three or more such persons. The act in question can be issued only after all the circumstances of the crime have been established and evidence has been obtained. Who the culprit is does not matter; it can be a military man or any other person. The third stage begins after the appearance of the accused in the case and ends simultaneously with the drawing up of the indictment. At this time, the person conducting the investigation substantiates the conclusions regarding the guilt of the persons. During the stage under consideration, new information may appear in the materials, which in some situations leads to re-presentation of charges.

The fourth stage is formed during the trial. It ends after the verdict is rendered. This period involves analysis and comparison of facts in the case. Next, the last, fifth, stage is implemented, which is represented by cassation and supervision. The initial decision in this case may change.

Everything about criminal cases

- whenever there is such an opportunity, the investigation strives to charge the accused with as much as possible:

A)

are charged with the most serious articles of the Criminal Code.

b)

the maximum number of episodes is charged.

- at the same time, already at the stage of bringing charges

the investigation may already understand in advance that the charges will be clearly softened at the trial stage - the qualifications will be changed to more lenient articles (in this case there is no danger for the investigator), some episodes will not be confirmed (but in this case the investigator may well have problems, see more details
here
).

Why is this being done?

Why does the investigation need this, what is the point?

Url Additional information:

The principle of consistency

The principle of consistency

: if a case is initiated, it will be pursued to the end

The main interest of the investigator (+ the head of the investigative department and the prosecutor, all together they form a side

charges): so that the principle “initiated criminal case = guilty verdict” is strictly observed (see
Principle of consistency
: if a case is initiated, then they will try to pursue it to the end).

What can happen in court (if qualifications are not confirmed)?

If in a trial, the qualifications that were in the indictment

the conclusion begins to “crumble,” what can the court do?

Url Additional information:

- part 2 252 of the Code of Criminal Procedure

changing the charges only for the better

Change of charge in court

Worsening situation

convicted at the stage of the trial of the first instance

The court cannot

. He has two options.

Url Additional information:

-
clause 20
of Plenum No. 55 change of charges by the court, only improvement

— first option

: the court can reclassify the act in the direction of mitigation, that is, pass a sentence under a more lenient article. In this option, the interests of the prosecution almost do not suffer (almost, since it is not the most ideal option for them, when the entire scope of the charge remains in the verdict).

Url Additional information:

— Clause 6 Part 1 237 Code of Criminal Procedure

return if the need for tightening is identified

— second option

: The court may return the case back to the prosecutor.
For this purpose, a special provision is provided, clause 6, part 1, 237 of the Code of Criminal Procedure
. But this option is very unpleasant for the prosecution. This is considered a defect in work. In the quarterly reports of both the investigative agency and the prosecutor, the number of cases returned is one of the most unpleasant lines (and if it has also increased compared to previous periods, expect trouble: deprivation of bonuses, public criticism at general meetings).

«Trade

«

Excessive qualifications provide an opportunity for “trading” like “you recognize this episode, and therefore we soften the qualifications.” Initial qualification under the most “terrible” articles makes the accused more compliant.

Preventive measure

The more serious the article, the easier it is to choose such a preventive measure as detention

.

TOTAL:

It is more profitable (safer) for the investigator to impose a more serious charge (which, even if it is not confirmed in court, will still result in a guilty verdict under a more lenient article) than to impose a mild charge, which is dangerous for the case to be returned. This benefits absolutely everyone:

- beneficial to the investigator, as a safety net against the return of the case from the court.

- it is beneficial for the judge, he gets the opportunity to “show kindness.” That is, the “evil” investigator imposed a serious charge, while the “kind” judge reduced the charge. This situation creates a picture of a fair trial that is psychologically convenient for the judge.

- it is beneficial even for the lawyer, he gets the opportunity to claim that he has partially “ruined” the case.

Does it make sense to apply for a change in qualifications?

?

This question can only be answered by studying the situation in a specific case. Because in some cases such a petition will make sense, but in others it will cause harm.

A)

on the one hand, by submitting a petition to the investigator to change qualifications, we receive the following positive aspects:

— we clearly indicate our position, which we will adhere to in the future (in some cases this is exactly what should be done).

— we deprive the court of the opportunity to groan in the future, “Why didn’t you declare this at the investigation stage?” (judges often make such reproaches).

b)

but there is another “side of the coin” here. In a petition to change qualifications, we will have to present our arguments; in fact, we “lay all our cards on the table.” That is, the investigator, the prosecutor - get the opportunity to take countermeasures against these arguments (interrogate witnesses, order another examination), which they would not have done if we had not revealed these “cards”.

That is

: A decision on whether to file such a petition will have to be made individually for each criminal case. Here it is simply impossible to give unambiguous advice: they say, you must submit a petition to the investigator - or, conversely, submit such a petition only in court. What would be a correct defensive move in one case, would be harmful stupidity in another case.

There is no point in appealing qualifications at the investigation stage

Requirements for retraining will most likely be rejected. Neither the judge, nor the prosecutor, nor the investigator simply need this. Moreover, it is even better for the judge if the case comes to him with excessively heavy qualifications, and he passes a sentence with a softening qualification.

If the investigator refuses to satisfy such a request (which is most likely to happen), is it possible to fight this refusal? Answer: you can fight, but is it necessary?

— most often it makes no sense to make such demands, we explain why:

A)

to appeal this decision of the investigator in accordance with Article
124 of the Code of Criminal Procedure
(to the head of the investigative department, the prosecutor), because The investigator usually makes a decision on qualifications with the verbal permission of his superiors, therefore it is useless to complain to them.

b)

It will also not be possible to appeal this decision of the investigator to the court under Article
125 of the Code of Criminal Procedure

- the court will either not accept such a complaint for consideration in accordance with paragraph 3.1

Plenum No. 1 “Actions (inaction) and decisions, the verification of the legality and validity of which falls within the exclusive competence of the court considering the criminal case on the merits, are not subject to appeal under Article
125 of the Code of Criminal Procedure
” (and qualification is precisely within the exclusive competence).

- or, if the court accepts such a complaint for consideration (in practice this happens, the complaint is accepted for consideration - due to the judge’s illiteracy, contrary to the above explanation of the Plenum), then it will refuse it. This can be said with 100% confidence. A judge will never interfere with the competence of an investigator ( clause 3, part 2, 38 of the Code of Criminal Procedure

) and dictate to him how to qualify the actions of the accused.
The judge simply cannot do this; he is expressly prohibited from doing so ( clause 21
of Plenum No. 1).

Change of qualification

- a change in qualifications can be made in court (according to Part 2 252 of the Code of Criminal Procedure

and
paragraph 20
of Plenum No. 55) and this is exactly how it happens most often.

- at the same time, a change in qualification is possible not only in the court of first instance, but also in appeal ( clause 2, part 1 389.18 of the Code of Criminal Procedure

) and even in cassation.

REHABILITATION during retraining

When overqualification is safe for the investigator

There is a very important nuance associated with possible retraining:

A)

In one case, the investigator may not be at all afraid of further retraining. When reducing the amount of charges will not entail negative consequences for him. This occurs in situations where the release of the accused from part of the charge will not lead to rehabilitation.

EXAMPLE (case No. 51-APU17-9)

Example

- acquittal under
Article 209 of the Criminal Code
, but the right to rehabilitation is not recognized.
In this criminal case, the investigator charged banditry only because three episodes of extortion were committed by a group that had signs of a gang (armed, etc.). The convicts did not perform
a separate physical action. And acquittal under this article did not lead to rehabilitation. That is, the investigator, in addition to extortion, also charged banditry - he understood in advance that if in court there was an acquittal in this part of the charge, then rehabilitation would not follow. This means that this excessive accusation is completely safe for the investigator.

When overqualification is dangerous for the investigator

b)

In other cases, the investigator has every reason to fear that the volume of the charges will be reduced. This happens in cases where the accused is acquitted of a separate independent crime.

EXAMPLE (Case No. 10-18698/2018)

Example

- acquittal under
Article 161 of the Criminal Code
, the right to rehabilitation is recognized.
In this criminal case, the investigator charged several independent
crimes. And when the charges against them were not confirmed and a (partial) acquittal was pronounced, the court recognized the right to rehabilitation. Here the investigator may get work problems (perhaps not big ones, since the justification is not complete, but still).

Meaning of qualification

There are several meanings for the correct classification of a crime:

1. General social. It is envisaged that the qualification process has a connection with the consolidation of laws and legal order. The interests of individuals are ensured, justice is restored in the state. In addition, attention is paid to the moment of formation of the rule of law. All of the above provisions provide that the country has implemented a criminal policy.
2. Criminal law. It assumes that correctly defined qualifications guarantee compliance with the laws that are used in justice. There is an expression of nature that has legal significance. The rights of citizens are guaranteed. Provides that criminal law must be applied correctly. It is possible to realistically assess the level of fight against criminal activity in the country.

The provisions under consideration collectively characterize the qualification process. They are used to determine criminal trends that exist in a particular state.

Qualification of criminal activity

In legal activities, there is always a certain list of issues related to the qualification of criminal activity, which involved people who, one way or another, cannot be brought to justice for their actions.

There are two circumstances related to this:

1. the crime involved people who cannot be brought to justice. Such as children and adolescents who have not yet reached the age at which responsibility begins. And those who are not subject to condemnation are people who committed a criminal act under the influence of irreversible forces;
2. the crime involved people who cannot be held accountable for their actions for the reason that they have freedom from liability, based on circumstances stipulated by law. For example, this could be “immunity” from prosecution, exemption from liability by law if it was not possible to establish an identity, and so on.