MIP Legal Encyclopedia online - » Criminal cases - comments by a Federal Judge / MIP Law Group » General provisions of the Criminal Code of the Russian Federation - comments by a Federal Judge / MIP Law Group » The principle of guilt - comments by a Federal Judge / MIP Law Group
Sign up for a consultation with the head of the criminal department. Professional explanations. Unlimited consultation time
The principle of guilt - free answers from lawyers online
Determination of guilt
Russian criminal law allows a person to be held accountable for committing an act that poses a public danger only if there is evidence of guilt. This means that the offender commits the act knowingly and of his own free will. Actions that are committed reflexively, involuntarily, impulsively, with a lack of will and intellectual origin cannot be assessed from the point of view of criminal law.
Guilt is not a personality trait. It refers to an objectively existing fact, manifested among the objective signs of an act. Guilt requires establishment, knowledge and evaluation by the law enforcement officer.
The absence of guilt excludes the criminality of the act. The reason for this is the mandatory presence of this element to qualify the actions of the violator. Guilt is a mandatory sign of the subjective side and requires not only establishment, but also indisputable proof. In some cases, guilt may not be proven, but rather presumed.
The concept of guilt, studied in the science of criminal law, is understood as the mental attitude of the offender to the act he committed, which has a public danger and the consequences that this act entailed.
Guilt can be expressed in one of two forms: intent and negligence. In exceptional cases, the form of guilt may be mixed. For example, in relation to an act, a person’s guilt manifests itself in the form of intent, and in relation to the consequences – in the form of negligence.
Third commentary to Article 5 of the Criminal Code of the Russian Federation
1. According to Russian criminal law, a person may be held liable if his socially dangerous and illegal actions and their consequences were mediated by consciousness and will, in other words, if they were committed guilty, i.e. either intentionally or through negligence. Reflexive, involuntary or impulsive actions, devoid of an intellectual or volitional basis, are indifferent for criminal law and cannot be the subject of criminal legal assessment. The principle of responsibility for guilt, i.e. in the form of intent or negligence, the actions committed are the principle of subjective imputation. Objective imputation, i.e. criminal liability for innocent causing of harm, as declared in Part 2 of Art. 5 of the Criminal Code is not allowed. Criminal legislation, enshrining the principle of guilt, which finds its concrete expression in the norms of Ch. 5 of the General Part of the Criminal Code of the Russian Federation (see commentary to Articles 24 - 28), consistently proceeds from the internationally recognized rule: “No guilt - no crime, no criminal liability.” This rule is universal and imperative and knows no exceptions.
2. The principle of guilt is universal. This means that not only in relation to an action (inaction) and its socially dangerous consequences, but also to all other legally significant circumstances affecting the qualification of the act, a person must show a mental attitude in the form of intent or negligence. In the absence of this indispensable condition, imputation of such circumstances as the responsibility of a person would be an act of objective imputation. Thus, when committing the theft of someone else’s property on a large scale, the perpetrator must be aware of precisely this fact, foresee and desire to cause precisely such material damage to the property. In the case of rape of a minor, the perpetrator must know or allow, or at least should have and could have foreseen, that he was committing a violent sexual act with the said victim. The universal nature of the principle of guilt is also emphasized in Art. 35 of the Criminal Code of the Russian Federation, in paragraph 5 of which it is established that a person who created an organized group or criminal community (criminal organization) or led them is subject to criminal liability not only for this criminal activity, but also for everything committed by an organized group or criminal community (criminal organization). organization) crimes, if they were covered by his intent.
3. Guilt is not a property of a person, but an objectively existing fact, manifested in the objective signs of an act, subject to establishment, knowledge and evaluation by the law enforcement officer. In accordance with the requirements of the criminal procedural legislation, guilt as a necessary element of any crime and as a mandatory sign of the subjective side of its composition is included in the subject of proof in a criminal case, and its presence in the crime must not only be established, but also indisputably proven. Meanwhile, there are still cases, especially during the investigation and consideration of criminal cases of careless, mainly transport, crimes, when the presence of guilt in relation to socially dangerous consequences is not proven, but is presumed. In such cases, the body applying the law, having established a deliberate (more precisely, conscious) violation by a person of the relevant transport safety rules, proceeds from the assumption that given such a mental attitude of the person to the violation, he must have careless guilt in relation to the consequences. Such a vicious, intolerant practice cannot but be regarded as a serious corrosion of the principle of guilt, as a dangerous relapse of objective imputation, which is deeply alien to Russian criminal legislation. In this regard, the Plenum of the Supreme Court of the USSR in the Resolution of March 18, 1963 “On strict observance of laws when courts consider criminal cases” gave the following instructions: “Courts must pay special attention to a thorough study of the subjective side of the crime committed. Harmful consequences, regardless of their severity, can be imputed to a person only if he acted in relation to them intentionally or caused them through negligence" (Collection of Resolutions of the Plenum of the Supreme Court of the USSR, 1924 - 1977. M., 1978. Part 2. C . 20).
4. The principle of guilt closely interacts with the principles of legality, equality of citizens before the law, justice, being a necessary condition for their full functioning.
On the other hand, a violation or even the slightest deviation from the principle of guilt inevitably leads to a violation of the above-mentioned basic principles of criminal law and to undermining the basis of criminal liability. ‹ Article 4. The principle of equality of citizens before the lawUp Article 6. The principle of justice ›
The meaning of the principle of guilt
The principle of guilt is universal; it allows us to fill the punitive functions performed by the state with signs of justice and proportionality. The level of punitive action is directly dependent on the level of guilt and its nature.
The principle of guilt is always individual in nature; it demonstrates the attitude of the guilty person not only to the act he committed, but also to the consequences that it entailed.
Criminal penalties and financial liability are applied to persons who have committed unlawful acts only after their guilt has been established, as well as indisputable evidence of its form has been determined.
The individualization of guilt indicates that responsibility can only be applied to those persons in whose actions there was a subjective side, expressed in the form of guilt.
The significance of this principle is especially important in law enforcement activities.
Principle of guilt
The principle of guilt in criminal law plays, perhaps, the most important role, since it determines the subjective capabilities of an individual to make a decision on a course of action and the objectively subjective capabilities of a law enforcement officer to prescribe a measure of repression of a certain degree of cruelty to the guilty party.
The principle of guilt underlies the fair imposition of punishment, the use of other measures of criminal legal and criminal procedural repression, the application of rules on exemption from criminal liability or punishment, etc. Article 5 of the Criminal Code of the Russian Federation establishes the following provisions that are most important for law enforcement practice: “A person is subject to criminal liability only for those socially dangerous actions (inactions) and socially dangerous consequences that have occurred in respect of which his guilt has been established” (Part 1). “Objective imputation, i.e. criminal liability for innocent causing of harm is not allowed” (Part 2). Thanks to Article 24 of the Criminal Code, guilt in criminal law is understood exclusively as intent and negligence. However, this is not entirely true. Guilt is the mental attitude of the subject to what is committed.
First of all, the principle of guilt takes into account the psychophysiological characteristics of the subject of the crime, revealing his capabilities and aspirations regarding the act.
Each subject is naturally equipped with a psychophysiological mechanism that encourages him to take constant actions. This could be scratching behind the ear, coughing, a sharp response to an opponent, and finally, a crime. At any moment, a person performs some kind of action and only sleep partly interrupts his life activity. In some cases, a person acts arbitrarily, unconsciously. For example, the natural reaction to the unpleasant shock of a camara bite would be to move to stop the pain. But, as a rule, to a greater extent the person imagines what is being done; the details of his behavioral reactions occur through consciousness. Most often, “and this and this are more relevant to acts of criminal behavior”[7], a person commits purposeful, motivated actions.
He understands not only the fact that the act is prohibited, but also that his behavior is socially disapproved and can quite realistically cause harm. Sometimes the subject must imagine that the action (inaction) he performs can cause harm, but does not want to make brain efforts, due to negligence or other unjustified reasons, ignores the need to weigh the pros and cons of his behavior. Thus, a person should be held responsible not for actions that did not pass through his consciousness, but for actions about which he knew that they could lead to socially harmful consequences.
Summarizing the issue of guilt, I, guided by legal literature, made some conclusions. A person is not responsible for causing harm through his actions. Causing damage is, of course, unpleasant. However, if the causer of harm is insane, criminal liability, like any other, is not subject to liability. This situation is natural, since the insane person does not realize the negativity of his behavior, and this sign serves as the main criterion for holding a person accountable. Consequently, a citizen must be responsible for the fact that his behavior, which caused harm, is the result of his own will, his consciousness.
He is responsible because he considered it beneficial for himself, to the detriment of public safety or the safety of another person, to satisfy his own needs in an illegal way. Having weighed his priorities - to commit crimes or not - he chose to focus on the first, although it was easy to choose the second option to solve the problem. For such a conscious choice, when a person did exactly what he wanted to do, the subject suffers the evil of punishment. This principle, the principle of responsibility for a conscious act, is called the principle of guilt, or otherwise the principle of subjective imputation . The principle of guilt is not limited to intent or negligence.
This principle denotes the extent to which a subject neglects socially significant norms of proper, permissible behavior. Understanding the principle of guilt as a measure or degree of neglect of generally valid values or norms of behavior has a number of important social and legal consequences. The main thing in these consequences is that the measure of neglect can have a lot of shades, a large number of degrees, which must be taken into account not only when assigning punishment, but also in the process of qualifying a crime.
Intention and negligence, as strictly fixed legislative concepts, have no shades. They are to a certain extent rigoristic and do not allow variation in the motives underlying any human action. In modern Russian criminal legislation, the degree of neglect of universally significant values has found some reflection, for example, in articles on crimes against the person, in the section crimes against life, offenses such as premeditated murder are provided, the maximum sentence for which is set in the range from six to fifteen years (Part 1 Art. 105 of the Criminal Code of the Russian Federation) and also premeditated murder committed in a state of passion (privileged murders), for which the perpetrator faces a maximum of three years in prison. Affect is an impulse that arises suddenly in response to a stressful situation. An impulse that enslaves the will of the subject and becomes dominant in his decision-making process. The situation of affective murder undoubtedly indicates a lesser degree of neglect by the individual of universally significant values, for he is forced to fatally submit to the psychophysiological dominant that has arisen in his consciousness. A murder that does not have mitigating manners, which indicate the volitional difficulties of the subject, but, on the contrary, is committed in a state when all priorities are weighed and divided and the crime is the result of resolving the situation, shows the extreme “criminal charge” of the subject. It can only be stopped, in particular, by long-term isolation of such an individual from society. Objective imputation, prohibited by criminal law, is that a person is charged with acts that did not pass through his consciousness, actions that he did not understand and at the same time should not and could not be aware of [8]. Such an imputation is akin to the condemnation of elemental forces), which was observed under feudalism), or socially dangerous behavior of an animal. Only for actions that, although they caused harm, could not be recognized for one reason or another, liability under Russian criminal law is excluded. Otherwise, the state, represented by the law enforcer, would be like the judges in the period of savagery, when people were punished on simple suspicion of witchcraft. Innocent, law-abiding people would suffer. In general, objective imputation would continue arbitrariness and judicial bacchanalia.
Thus, Article 5 of the Criminal Code of the Russian Federation, in essence, introduced a rule according to which a subject can only be charged with a crime in relation to which he showed a certain mental orientation, expressed in intent or negligence. If the person committed by objective properties understands one crime, while he wanted to commit another, then the principle of guilt applies - responsibility occurs only for the act in relation to which the subject had a subjective orientation.
For example, a subject intended to kill a government official out of revenge for his activities, but mistakenly killed another non-statesman, although he looked similar to him. Two norms of criminal law of the Special Part collide: Article 277, which establishes liability for an attack on the life of a statesman or public figure, and Article 105, which establishes liability for murder. In this case, the subject will be liable according to the direction of intent, i.e. as for an encroachment on the life of a statesman, according to Article 277 of the Criminal Code of the Russian Federation (though, as for an unfinished crime, since in fact he failed to kill a statesman).
As has already been noted, the subject is responsible to a greater extent not for the action, but for the neglect of generally valid values, which finds objective expression in behavioral acts. At the same time, neglect, in relation to criminal law, should not be abstract (everything is bad and there is nothing new under the sun), but concretely defined, expressed in the focus of consciousness on a specific act of behavior. We are talking about responsibility for the desire to commit a specific illegal act, or about neglecting the rules of precaution accepted in society, which resulted in a specific crime. The legislative interpretation of the principle of guilt in this context allows the subject to be prosecuted only for such an act in respect of which he discovered intent or negligence.
The importance of interpreting the principle of guilt not only as the degree of neglect of generally valid values, but also as the need to be responsible for a conscious or “careless” act committed, i.e. an act committed due to negligence lies, in particular, in the rules for qualifying the act in the event of an admission. If the subject intended to commit one act, but by mistake committed another, then the principle of guilt imposes on the law enforcement officer the obligation to qualify the act according to the direction of the subject’s intent. The principle of guilt means personal responsibility only of the subject who committed the crime. No one other than the perpetrator can be held criminally liable, which is very important, in particular, when qualifying acts committed in complicity.
For example, a group of people (accomplices) agreed to commit a theft. The perpetrator illegally entered a private house, saw the owner and killed him. According to the principle of personal guilt, only the accomplice will be held responsible for the murder, since it was not within the scope of intent of the other accomplices. The principle of guilt presupposes the establishment of the subject’s mental attitude to the crime in exactly the form provided for by the norm of the Criminal Code. For example, Part 2 of Article 38 of the Criminal Code establishes that a subject can be held accountable for exceeding the measures necessary to detain a person who has committed a crime only in cases of intentional harm.
Consequently, if a citizen or government official detained a person who committed a crime and negligently caused him harm, criminal liability is excluded. Compliance with the principle of guilt presupposes the establishment of the entire scope of circumstances that characterize the act committed by the subject.
It is necessary to establish that the consciousness of the person who committed the crime included all those signs, the presence of which the law associates with the “existence” of a specific criminal act. Thus, in paragraph “c” of Part 2 of Article 158 of the Criminal Code of the Russian Federation, it establishes such a sign of qualifying theft as committing an act involving illegal entry into a home, etc. The principle of guilt in this case means that the subject committing qualified theft must be aware that he is illegally entering not just anywhere, but specifically into a home. And if he is mistaken about the status of the premises, then liability will still arise based on the direction of intent as for an attempted crime provided for by the relevant norm.
2.4 Principle of fairness
The principle of fairness of law is one of the oldest principles of legislation in general and criminal law in particular. This principle was an object of great “curiosity” for lawyers and philosophers that entire treatises were devoted to it. Therefore, it is no coincidence that the word “justice”, which has international significance, is translated as “justice”: from Latin Justitia - fairness, legality. Justice as a category is largely ethical; it means a certain attitude of a person or society towards asocial phenomena and actions[9].
Justice understood in this way did not remain an unshakable pillar with stable content. Its essence depended on the century, which, from an ethical point of view, was characterized by people’s ideas about morality and defilement. Thus, during the formation of Slavic society, burning women alive along with their deceased husband was considered fair. Otherwise, according to Karamzin, dishonor awaited her. In a general sociological and philosophical sense, justice is divided into legal and social.
Aristotle believed that justice is an ethical and social property of a person that can equalize citizens in rights and responsibilities, but cannot give preference to individual citizens depending on their merits or intellectual property. In this context, Aristotle divided justice into equalizing and distributive. Aristotle's measure of justice, almost unchanged, has reached our contemporaries, being reflected in the laws of almost all states. As for the principle of justice, enshrined in Article 6 of the Criminal Code of the Russian Federation, it embodies the idea of legal justice with an indispensable inclusion of social justice.
The legal validity of the principle of Article 6 of the Criminal Code of the Russian Federation lies in the fact that punishment is applied to the person who committed the crime. However, in the future the principle of justice is distributive in nature. Punishment and other measures of a criminal legal nature take into account the personal characteristics of the perpetrator. In this case, we mean the merits of the subject, his post-criminal behavior, pre-criminal characteristics, even his possible benefit for the public good due to the special intellectual potential of the individual. In modern Russian criminal legislation, the principle of justice enshrined in Article 6 of the Criminal Code states “1. Punishments and other measures of a criminal legal nature applied to a person who has committed a crime must be fair, i.e. correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. 2. No one can be criminally liable twice for the same crime.”
Based on the legislative formulation of the principle of justice in modern criminal law, it is considered in relation to liability: punishment must be fair. In this case, the principle of justice is mainly addressed to the activities of the court, since it is the court and no other law enforcement agency that has the authority to impose punishment. At the same time, I would like to note that a fair punishment can be imposed, firstly, when the outcome of the criminalization process is fair, i.e. in the event that the legislator correctly grasped the social danger of the offense, turning it into a crime.
Secondly, punishment can be fair if the legislator has provided fair, i.e. measures of responsibility corresponding to the crime. It would not be fair, for example, if the legislator established the death penalty for the theft of someone else's property (although precisely this punishment was considered fair in the first Russian truths). Consequently, the principle of justice, although it concerns the judiciary to a greater extent, is at the same time indirectly addressed to the legislator. The fairness of punishment and other criminal legal measures depends on the nature and degree of public danger of the crime, the circumstances of its commission, and the identity of the perpetrator. The legislator connects the implementation of the principle of justice, first of all, with the nature and degree of social danger of the act.
However, it should be noted that such a hierarchical construction of “dependencies” should not be perceived in terms of certain preferences. Any of the circumstances listed in Article 6 of the Criminal Code of the Russian Federation, affecting the fairness of liability, is inherently equivalent to others. The nature and degree of public danger of an act means the severity of the crime, mainly taking into account the consequences that it entailed. Slander and murder are different crimes. They are so different that it is completely fair to assign in the first case a punishment not related to imprisonment, and in the second - life imprisonment[10].
Serious crimes should receive a fairly severe assessment in the form of the establishment of the maximum repressive punishment and, conversely, less serious criminal acts deserve a less severe assessment in terms of responsibility. This kind of understanding of justice contains a certain element of punishment, which is more natural and consistent with the punishments provided for in Article 43 of the Criminal Code of the Russian Federation. Restoring social justice, as one of the main objectives of punishment, is based on a temporary approach to an action and giving the subject his due. It must be taken into account that the degree of responsibility must correspond to the gravity of the criminal act. The process of comparing the severity of the crime with the severity of the crime and the proposed punishment for it is in the nature of a choice. The court, weighing all the circumstances of the case, decides at its own discretion how to evaluate a socially dangerous act. The circumstances of the crime are largely objective characteristics. This could be, for example, a negative social environment (a family where the mother and father drink and lead an antisocial lifestyle), a difficult set of personal circumstances (the loss of a breadwinner, a long-term lack of livelihood), etc.
Naturally, the reasons should be properly analyzed, weighed against everyone's legal consciousness and taken into account when choosing a measure of repression. If, for example, the subject committed theft because he did not receive a salary for a long time and was forced to do such an act without having the means to support his family, then this circumstance should undoubtedly affect the extent of his responsibility. Consideration of the identity of the culprit is largely subjective. It is known that a person acts as his will dictates, what his passions prompt him to do. At the same time, in some cases it is impossible to free yourself from the dictates of desires. And then the person commits a crime, which he may later regret. These include, for example, privileged murders (crimes committed in a state of passion, Art. 107, 113). Affect is a strong emotional disturbance, the “orders” of which are very difficult to get rid of, which characterizes a person as impulsive.
From the position of equality of all before the law, such a person must be held accountable. But from the point of view of justice, this personality trait affects the degree of repressiveness of the punishment imposed by the court. The personality of the culprit is made up of his psychophysiological characteristics, individual preferences as a participant in social relations - views on work, family, friends, alcohol, drugs, etc.
It is natural and absolutely correct when a hooligan is given a more severe punishment for committing another crime than a person who committed the act for the first time, and even as a result of a combination of family circumstances. This principle is embodied in the list of punishments, which are comprehensively reflected by the legislator in Article 44 of the Criminal Code. The modern criminal code provides for 13 types of punishment.
At the same time, the articles of the Special Part contain both alternative punishments (either imprisonment or another punishment) and relatively specific ones (imprisonment not for a certain period, but “from” and “to”). Thus, the court is given the opportunity to choose the most fair punishment suitable for this particular case. Taking into account all the circumstances of the act and the identity of the perpetrator.
The principle of justice is also implemented in the institutions of exemption from criminal liability and punishment, imposition of punishment below the lowest limit, etc. For example, according to Art. 64 of the Criminal Code, under certain conditions relating to the objective properties of crimes and the subjective characteristics of the personality of the perpetrator, a punishment may be imposed even below the limit specified in the sanction of the article of the Special Part for a given crime.
The principle of fairness of punishment and other measures of a criminal legal nature is also reflected in the fact that criminal law does not provide for prosecution twice for the same crime.
Thus, a Russian citizen who has committed a crime outside the Russian Federation and was convicted by a court of a foreign state cannot simultaneously be held criminally liable in the Russian Federation (Part 1 of Article 12 of the Criminal Code of the Russian Federation), since this violates the constitutional requirements of responsibility and the relevant provisions of international law. There is a close relationship between the principles of justice and equality of all in relation to the law. At the same time, the concept of equality of citizens before the law suffers from a certain formalism: it only takes into account that any citizen who has committed a crime must be punished. The principle of justice is more “loyal”. Its implementation involves taking into account both the objective parameters of the crime and the subjective properties of the perpetrator; this is not at all inherent in the concept of equality.
2.5 The principle of humanism
Humanism presupposes respect for a person, his interests, his calling as an individual. Based on this understanding of humanism, Article 7 of the Criminal Code of the Russian Federation is formulated:
1. The criminal legislation of the Russian Federation ensures human safety.
2. Punishment and other measures of a criminal legal nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation of human dignity.” The principle of humanism is addressed to two categories of persons: law-abiding citizens and those who have violated and violated the criminal law, i.e. to criminals. The first part of Article 7 establishes the rule according to which criminal law ensures the safety of citizens. This imperative is fully consistent with the dictates of the Constitution of the Russian Federation, which first of all proclaims the need to protect and respect the interests of the individual. Relatively recently, a person began to act as a goal, and not as a means to achieve it. Previously, it was believed that human material was necessary for a more complete and successful construction of socialism and the victory of communism. At that time, there was even a certain expression, or rather the phrase “human resource”.
Currently, the individual has begun to be viewed from a different angle - it has turned into a goal for the sake of which social events are carried out. The Constitution consolidated this new attitude towards man, and regulations were given with constitutional postulates. In the Criminal Code of the Russian Federation, the principle of humanism in relation to the citizen as the object of all social endeavors is embodied, first of all, in Article 2 of the Criminal Code of the Russian Federation, where the protection of the rights and freedoms of man and citizen is named as a priority task. In addition, the system of the Special Part of the Criminal Code is structured in such a way that its first chapter is devoted to the protection of the most important human values - life and health. The principle of humanism is presented in Art. 7 of the Criminal Code of the Russian Federation in three aspects. Firstly, ensuring the safety of citizens, secondly, the possibility of lawfully causing harm in order to achieve socially useful goals and, thirdly, the attitude towards the person guilty of committing a crime[11].
Ensuring the safety of citizens is manifested in punishing or bringing to criminal responsibility the person who committed the crime, isolating the offender from society, as well as other measures of criminal legal influence on the subject who committed the unlawful act, eliminating or complicating the possibility of the subject committing a crime again. The very fact of using measures of criminal or criminal procedural coercion presents an impressive picture for unstable citizens who are inclined to solve their own problems through criminal means.
Thus, by punishing the culprit, the state ensures the safety of citizens, stopping criminal manifestations as much as possible. The principle of humanism in relation to the law-abiding citizen is expressed in the opportunities provided for in the Criminal Code, which allow one to lawfully, without fear of punishment, repel criminal attacks or perform other useful acts for society. We are talking about such circumstances as are specified in Chapter 8 of the Criminal Code. This is a necessary defense:
— detention of the person who committed the crime;
- extreme necessity;
- physical or mental coercion;
— reasonable risk;
- execution of an order or instruction.
For example, if a scientist carried out an experiment that promised to bring unprecedented benefits to society, and, subject to the necessary rules of precaution, still failed, causing actual harm, he is exempt from criminal liability, since his risk will then be considered justified (exceptions to this rule are noted in accordance with Article 41 of the Criminal Code of the Russian Federation). Another aspect of the principle of humanism is the attitude towards the guilty.
Punishment is partly punishment for a crime committed. However, this punishment should not exceed certain limits when it turns into shameful and ugly revenge. In this regard, the principle of humanism is closely linked with the principle of equality of all before the law and the principle of justice. If the requirements of equality of citizens before the law require the mandatory prosecution of any person who has committed a crime, the provisions of justice lie in the proportionality of punishment, but still in the use of repression. The principle of humanism is the use of repression that does not have the purpose of causing physical suffering or humiliation of human dignity. Any punishment, and especially imprisonment, causes physical suffering to a certain extent. However, this is not the purpose of punishment. They are necessary to correct the convicted person, prevent new crimes, and restore social justice.
If the goals of deprivation of liberty were to inflict physical suffering, then there would hardly be a need for institutions of exemption from punishment, probation, etc. When causing suffering to a convicted person, the law enforcement officer takes into account all the circumstances of the case and the personality of the perpetrator so that the measure of suffering can fulfill an educational role. In this sense, the suffering of the prisoner is in punishment. Unnecessary suffering can make a martyr out of a criminal. And then this can become a sign that is able to rally huge masses of people (it is well known from history how the Russian people treat martyrs). Therefore, the principle of humanism in relation to a person who has committed a crime has not only legal, but also social and political significance, often very important. The principle of humanism, as it follows from the legislative formulation, is two-faced. Hence the contradiction: while showing humanity to law-abiding citizens, to victims, the court must simultaneously show a humane attitude towards the criminal. The contradiction is resolved by the fact that a humane attitude towards the criminal is one of the most important means of crime prevention. Realizing that he received a fair punishment and a humane measure of repression, the offender will more easily understand the negativity of what he committed, will strive to correct himself faster, and will not become embittered, which is very important for crime prevention. In turn, crime prevention is the most important means of protecting citizens and the entire society from criminal attacks. Outwardly, the apparent contradiction of the principle of humanism is, in essence, aimed at noble goals - protecting people from criminal attacks. The principle of humanism is clearly embodied in the legal institutions of amnesty (Article 84 of the Criminal Code) and pardon (Article 85 of the Criminal Code).
The humane attitude of amnesty acts is that categories of citizens who have minor children in need of supervision, etc. are exempt from liability. Pardon is addressed to each specific subject convicted of a crime. The act of pardon, perhaps, like the act of amnesty, means full or partial forgiveness of a person for his previous criminal behavior. In addition to the above-mentioned institutions, the principle of humanism is implemented in the rules on the criminal liability of minors (Section 5 of the Criminal Code, exemption from criminal liability and punishment). The principle of humanism does not mean forgiveness. The person guilty of a crime is sentenced, but the degree of his repressiveness must correspond to the necessary degree of suffering as a factor of educational influence, and not as a primitive punishment[12].
All principles of criminal law are closely interconnected and act as a single system. The requirements of this system are aimed at only one goal - to protect the interests of citizens and society in the most reliable way.
Conclusion
In conclusion, I would like to note that the tasks facing criminal law are solved on the basis of its principles, i.e. the basic, initial principles, in accordance with which both its system and criminal legal regulation in general are built. The specific content of the principles and their list both in the general theory of law and in criminal law are understood ambiguously.
As already noted in the above work, they are divided into general (inherent in the legal system as a whole and acquiring their specific content in a particular branch) and special (industry-specific), revealing the qualitative features of the legal regulation of a particular branch of law. However, recently a different point of view has been expressed in criminal law science, denying the need to identify special (sectoral) principles of criminal law. It is argued that general legal principles operate through sectoral ones, and specific sectoral principles are nothing more than a kind of refraction of general legal principles.
I would like to note that in addition to the principles formulated directly in the criminal law, other principles are traditionally identified in the science of criminal law. Among them, the principle of inevitability of responsibility is of particular importance. It means that any person who has committed a crime is subject to punishment or other criminal measures provided for by criminal law. The meaning of this principle is that the inevitability of responsibility is the best way to demonstrate the preventive effect of the criminal law and its application.
Forms of guilt
Guilt is a mandatory feature that characterizes the subjective side of the crime. It can manifest itself in a deliberate form, in the form of negligence.
The intent inherent in guilt must have intellectual characteristics that characterize the awareness of the act, as well as will, meaning the person’s intention to achieve specific consequences. Volitional content is inherent in a crime with a material composition.
The form of direct intent indicates the offender’s awareness of the social danger of the act, the anticipation or inevitability of the consequences and the desire for their occurrence.
The form of indirect intent speaks of awareness of the social danger of an act, anticipation of a dangerous consequence, in the absence of desire, but showing indifference to the possibility of their occurrence.
Carelessness can manifest itself in the form of criminal recklessness or criminal negligence.
Frivolity should be understood as foresight of consequences associated with arrogance to avoid or prevent them.
Innocent mischief
Innocent harm in modern science is called a case or incident. If there is innocence, the presence of a criminal act is noted, the occurrence of consequences that have a social danger, a causal relationship between these signs, but the innocence of causing harm excludes the criminal liability of the person who committed the act.
Causing harm without guilt is characterized by the absence of the subjective side of the actions, which means it is impossible to establish either the intent or negligence of the offender.
Cases are defined by Art. 28 of the Criminal Code. The definition of the case indicates that the person who committed the act did not have the opportunity to recognize the social danger, as well as to foresee the onset of consequences that would pose a public danger. Moreover, such a person could not and should not have foreseen them.
The second part of the above article establishes a type of such act. Innocent harm can also occur in cases where a person had the opportunity to foresee the consequences, but could not influence their prevention, which is justified by his psychophysical qualities, neuropsychic overload, and the presence of extreme conditions.
Innocent harm will occur in cases where a person loses control of himself due to nervous exhaustion, physical overload, or in the presence of an extreme situation.
Commentary to Art. 5 of the Criminal Code
1. Russian criminal law takes the position of subjective imputation. Objective imputation, i.e. bringing a person to criminal liability for innocent causing of harm (Article 28 of the Criminal Code) is not allowed.
2. The principle in question also means that the person who committed the crime is responsible only for what was committed by him personally. Criminal law does not recognize responsibility for the actions of others, and therefore excludes the responsibility of parents for children and children for parents, spouses for each other, etc. Today it contradicts the principle of personal responsibility, Part 2 of Art. 88 of the Criminal Code, which provides for the possibility of collecting a fine imposed on a convicted minor from his parents or other legal representatives with their consent.
Causing harm through negligence
Negligence, as a type of careless form of guilt, can be characterized by negative or positive signs.
A negative characteristic is the person’s failure to foresee the consequences that occurred as a result of actions the illegality of which was not realized by the offender. We are talking about events in which a person understood that he was violating the rules provided for by law, but did not expect the consequences to occur, as well as those cases when a person was not aware of the fact of violating the rules, or did not have volitional control due to his own fault.
A positive sign is the opportunity and obligation to show attentiveness, forethought, and anticipate the onset of consequences that pose a public danger. This intellectual moment gives negligence the characteristics of criminal liability.
Negligence, which is a type of guilt due to negligence, has certain similarities with frivolity, which is expressed in the ability to foresee consequences that, for a number of reasons, were not foreseen by the person.
