In what cases can a more lenient punishment be imposed than prescribed for the crime?

In what cases can a more lenient punishment be imposed than prescribed for the crime?

July 11, 2018

The appointment of a more lenient punishment than provided for the crime committed is provided for in Article 64 of the Criminal Code of the Russian Federation and is possible in the presence of exceptional circumstances related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime and other circumstances that significantly reduce the degree of public danger of the crime, as well as with the active assistance of a participant in a group crime in solving this crime.

The goals and motives of the perpetrator in this case must be devoid of a vile nature, and indicate that the crime was committed not out of malice, but for reasons that the criminal law associates with the possibility of mitigation of punishment (minor role in the commission of a group crime, confession , active assistance in solving a crime and searching for property acquired as a result of a crime; providing medical and other assistance to the victim immediately after the commission of a crime, etc., which indicates a significant reduction in the danger of the person who committed the crime).

Both individual mitigating circumstances and a combination of such circumstances as those provided for in Art. 61 of the Criminal Code, and no.

It is the exclusive competence of the court to recognize a circumstance as exceptional. But if the court recognizes the circumstance as exceptional, it is obliged to mitigate the punishment by applying one of three mutually exclusive mitigation options:

— impose a punishment below the lower limit provided for in the relevant article of the Special Part of the Criminal Code. In this case, the lower limit that the court can assign will be equal to the lower limit that is established for this type of punishment in the General Part of the Criminal Code. A punishment below the lowest limit can be imposed in relation to any main type of punishment enshrined in the sanctions of the Special Part of the Criminal Code (except for life imprisonment and the death penalty), regardless of the fact that the Criminal Code provides for alternative, milder types of punishment for this act;

- the court may impose a more lenient punishment than provided for by this norm;

- do not apply an additional type of punishment provided for as mandatory.

The considered rules on imposing a more lenient punishment than provided for the crime committed do not apply if the convicted person has committed crimes of a terrorist nature or certain crimes associated with the implementation of terrorist activities, provided for in Articles 205, 205.1, 205.2, 205.3, 205.4, 205.5, parts 3 and 4 articles 206, part 4 article 211 and articles 277, 278, 279, 360, 361 of the Criminal Code of the Russian Federation.

This is due to the fact that the increased public danger of the designated crimes related to terrorism is obvious, and those listed in Art. 64 of the Criminal Code of the Russian Federation, circumstances, in principle, should not be considered as significantly reducing it and indicating the need to impose a punishment without complying with the limits of its type and amount established by the sanction of the relevant criminal law norm.

Prepared by the criminal justice department of the regional prosecutor's office

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If there are exceptional circumstances

Features of sentencing below the lower limit provided for in Art. 64 of the Criminal Code of the Russian Federation. In criminal legislation, the theory of criminal law and judicial practice of the Russian Federation, there has been a certain tendency towards the identification of “special” mitigating, aggravating and other circumstances, both those appearing and those not included in the legislative lists. The difference between “special” circumstances and ordinary ones (Articles 61 and 63 of the Criminal Code), within the meaning of the law, is that the former can change the limits within which the punishment is imposed. Mitigating and aggravating circumstances enable the court to individualize a particular punishment within the limits of the article of the Special Part of the Criminal Code defined by law. Thus, “special” mitigating circumstances include: 1) characterizing the post-criminal behavior of the perpetrator, his efforts to make amends for the harm caused to the victim by the crime committed (Article 62 of the Criminal Code);

2) exceptional - related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, and others that significantly reduce the degree of public danger of the crime, as well as with the active assistance of a participant in a group crime in solving this crime (Article 64 of the Criminal Code) ;

3) conditioning the jury’s verdict on leniency or special leniency (Article 65 of the Criminal Code);

4) an unfinished crime (Article 66 of the Criminal Code).

Of significant interest for judicial practice are exceptional circumstances in which it becomes possible to impose a more lenient punishment than provided for a given crime.

At different stages of development, Russian criminal legislation ambiguously determined the procedure for imposing punishment below the lower limit of the article providing for liability for a criminal offense. For example, after coordination of the Code with the Judicial Statutes as amended in 1866 and 1885, under Art. 135 of the Code, the court was given the right not only to reduce the measure within a degree, but to lower the punishment by one or two degrees, and for press crimes even by several degrees, or even move to the highest degree of the nearest lower type of punishment.

In the decision in the F. case, the Senate recognized that the court may, in addition to the grounds specified in Art. 134 and 135 of the Code, refer to other circumstances causing leniency towards the perpetrator.

The law included the following in this group of circumstances:

1. Full sincere consciousness of the defendant, who confessed or was taken in for questioning on suspicion, if he not only indicates all accomplices, but also, by delivering correct and timely information, prevents the execution of any other criminal intent, so that this point could not be used a criminal who had no accomplices or no information other than what he committed.

2. Voluntary and full consciousness of the defendant, if he deserves special leniency due to previous impeccable service or excellent merits and merits.

3. Long-term stay on trial and in custody, if the defendant is found guilty of a crime that does not entail deprivation of all rights, regardless of the legal significance of the charge.

In the Criminal Codes of the RSFSR of 1922 and 1926. Exceptional circumstances were also mentioned, but there was no list of them that would allow imposing a punishment below the lowest limit provided for in the relevant article of the Special Part of the Criminal Code. The legislator in both Codes provided for the possibility of determining a measure of social protection below the lower limit of punishment provided for by law, or of moving to another, less severe type or less severe measure of social protection.

Thus, Article 51 of the Criminal Code of 1926. prescribed that if the court, due to exceptional circumstances of the case, is convinced of the need to determine the measure of social protection below the lower limit specified in the relevant article of the Criminal Code, or to move on to another, less severe measure of social protection, not indicated in this article, it may allow such a deviation , but not otherwise than by accurately setting out in the verdict the motives that caused this retreat.

Article 37 of the Fundamentals of Criminal Legislation of 1958, just like the previous criminal law, did not disclose the content of “exceptional” circumstances, but the court was ordered to take into account the identity of the perpetrator in order to allow such mitigation.

The issue of exceptional circumstances was resolved differently in the new Criminal Code of 1996.

Part 1 of Article 64 deals with exceptional circumstances related to

1) the goals and motives of the crime, 2) the role of the perpetrator,

3) his behavior during or after the commission of the crime,

4) other circumstances that significantly reduce the degree of public danger of the crime, as well as when

5) active assistance of a participant in a group crime in solving this crime. Comparison of exceptional circumstances that make it possible to assign a more lenient punishment than provided for a given crime in the Criminal Code of 1960. and Criminal Code 1997 shows that the current criminal law determines the ability of the court to impose a more lenient punishment by the presence of only exceptional circumstances of the case (goals, motives, role of the perpetrator, his behavior during and after the commission of the crime, etc.), while in the Criminal Code of 1960. - and circumstances characterizing the individual.

But to reduce the punishment below the lowest limit, two types of circumstances are required: objective and subjective. Taken together, they must show that the committed act and the identity of the perpetrator represent an exception in the series of criminal attacks, the circumstances of the commission of which correspond to the elements of crimes specified in the articles of the Special Part of the Criminal Code.

In any case, whatever the motives of the legislator, one thing is clear: the legislator’s establishment of exceptional circumstances of the case as the only basis for imposing a punishment below the lowest limit can be understood as an underestimation of the circumstances characterizing the individual.

Analysis of the formulation of exceptional circumstances allows us to reveal the legislator's shortcomings when deciding on the identification of two groups of circumstances characterizing the crime and the individual.

Firstly, the circumstances of the first type include a set of random factors - “circumstances of the case related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, and other circumstances that significantly reduce the degree of public danger of the crime.” At the same time, “active assistance of a participant in a group crime in solving this crime” is named as an independent type of circumstances.

Thus, the scientific sequence of presentation of circumstances reflecting the objective, subjective aspects of the crime and personality is violated.

Secondly, the behavior of the perpetrator after the commission of the crime, in our opinion, is clearly erroneously attributed to the circumstances characterizing the social danger of the crime.

Thirdly, it is controversial to attribute goals and motives to the circumstances that determine the social danger of a crime.

Fourthly, the role of the individual is significantly reduced. More logical from the point of view of criminal law doctrine in solving this problem is the formulation of the grounds for imposing a more lenient punishment, proposed by the authors of the concept of the future development of criminal legislation: “The circumstances that collectively characterize the committed act can be recognized as exceptional , the identity of the convicted person, the degree and form of his guilt, the causes and conditions of the crime committed, the person’s behavior before and after the commission of the crime, his efforts to compensate for the damage or eliminate the harm caused, assistance in solving the crime, etc.”

Part 2 of Article 64 of the Criminal Code recognizes both individual mitigating circumstances and the totality of such circumstances as exceptional. The inclusion of this provision in the law allowed us to solve two problems.

Firstly, the basis for imposing a punishment below the lower limit of the article of the Special Part may be one single circumstance of the case.

Secondly, the court, guided by the specific materials of the case, has the right to take into account as exceptional even those circumstances that are not included in the list of mitigating factors. When assigning punishment to a specific person, the court may come to the conclusion that imposing even the mildest type of punishment and the minimum amount provided for by the sanction for a given crime will be unfair. Hence, in our opinion, the law provides for the possibility of reducing it.

Statistics show that courts have begun to increasingly use lenient punishment. Thus, in the Vologda region in 1996, of the total number of persons sentenced to imprisonment, the courts imposed a more lenient punishment on 3.1 percent of persons; in 1997, - 6.4, in 1998 - 7.3, in 1999 - 7.8, in 2000 - 8.1. At the same time, the unsuccessful, in our opinion, formulation of the list of exceptional circumstances causes significant difficulties for the courts in determining such circumstances.

Thus, in published judicial practice, both those included in the list (for example, full compensation for material damage from theft - the case of M. and K.) and those not included (for example, the presence of four children, of which two are minors, the unlawful behavior of the victim) are considered exceptional. , positive characteristics of the perpetrators - D.’s case). According to our calculations, the circumstances of the first and second of these groups are taken into account by the courts in a ratio of two to three.

This is not surprising, since, firstly, the list of circumstances under study is open, and secondly, the legislator did not include in the list the identity of the perpetrator in all its diversity.

There is also no consensus among scientists regarding exceptional circumstances. In the science of criminal law, some propose to abandon exceptional circumstances, others recognize the existence of exceptional circumstances only in the absence of aggravating ones. The problem in this case is that exactly we are studying: the imposition of punishment within the sanction of the article of the Special Part or going beyond its boundaries.

The court does not have the right to impose a punishment below the minimum limit that is determined for this type of punishment by the article of the General Part of the Criminal Code. Courts often make mistakes in this matter. Thus, by the verdict of the Vologda City Court, citizen A. was convicted under Part 1 of Article 289 of the Criminal Code with the application of Article 64 of the Criminal Code to two months of imprisonment, that is, he was given a sentence below the minimum allowable by law .Courts often have a question about whether it is possible to impose a punishment below the lower limit if the sanction is alternative and provides for more lenient types of punishment than the one imposed using Article 64.

In this regard, in paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of imposing criminal punishment by courts” dated June 11, 1999. No. 40 provides an explanation according to which any milder type of punishment may be imposed, not specified in the sanction of the article of the Special Part of the Criminal Code, including a fine, deprivation of the right to hold certain positions or engage in certain activities, and correctional labor.

The imposition of a punishment below the lower limit is not prevented by the presence of alternative, milder types of punishment in the same sanction. We believe that the court must first exhaust the sanction and, if it provides, along with deprivation of liberty, a type of punishment such as a fine (for example, Part 2 of Article 158), then it is impossible to assign correctional labor without bypassing the fine. We believe that recommendations of the Plenum of the Supreme Court of the Russian Federation “On the judicial verdict” dated April 29, 1996 No. 1 regarding the indication in the operative part of the verdict that the punishment is determined under the relevant article using Article 64 of the Criminal Code must be reflected in Article 308 of the Code of Criminal Procedure of the Russian Federation.

The court has the right to impose a basic punishment below the minimum or choose a more lenient type of punishment than provided for by the sanction, and at the same time exempt from the additional punishment provided for by the sanction in the form of a mandatory one. The peculiarity is that it is impossible to pre-select from the entire set of circumstances permitted by law (specified in Article 64 of the Criminal Code, or not specified separately or in combination) those that give the right to apply this norm. This is truly a question of fact and must be decided each time taking into account the requirements of the article and the public danger or characteristics of a particular person. Judicial practice shows that an individual circumstance of a case can play the role of an exceptional one, if it is assessed as such not in isolation from all the established facts in the case, but in conjunction with them.

Let us note that at present the legislator, firstly, does not make the possibility of choosing a punishment below the lower limit dependent on the number of mitigating circumstances established in the case.

Secondly, this choice does not connect with the inclusion of these factors in the legislative list; thirdly, the legislator abandoned what he had previously enshrined in Article 38 of the Fundamentals of the USSR of 1958. and Article 43 of the Criminal Code of 1960. rules on the mandatory indication of the reasons for the decision made.

Fourthly, the rules of Article 64 of the Criminal Code of the Russian Federation can be extended not only to basic, but also to additional punishments.

Taking into account the above, we offer our own version of Article 64 of the Criminal Code of the Russian Federation :

"1. In the presence of exceptional circumstances, the punishment may be imposed below the lower limit provided for by the relevant article of the Special Part of this Code, or the court may impose a more lenient type of punishment than provided for by this article or not apply an additional type of punishment provided for as mandatory.

2. Individual mitigating circumstances characterizing the social degree of danger, the purpose, motives, causes and conditions of the crime committed, the identity of the perpetrator, the form and degree of guilt, behavior before and after the crime, his efforts to compensate for damage or causing harm, may be recognized as exceptional. assistance in solving a crime, and especially a group crime and a combination of such circumstances.”

Note that if at the end of the last century the application of Article 43 of the Criminal Code of the RSFSR in Russia was almost a general rule (in 1996 - 7.2 percent, 1987 - 8.4, 1998 - 8.2), then in recent years these indicators have decreased. Thus, according to some estimates, in the Republic of Tatarstan I 1999. Punishment according to the rules of Article 64 of the Criminal Code was imposed in 3.6 percent of cases of all persons brought to criminal liability in 2000. - 5.4. In conclusion, we emphasize that the frequent use by courts when imposing punishment of the provisions of Art. 43 of the Criminal Code of 1960, Art. 64 of the Criminal Code of 1997. - a clear sign that the lower limits of sanctions in the articles of Russian criminal law are unjustifiably high.

Victor ANUFRIEV, Honored Lawyer of the Russian Federation,

Sergey DONETS, lawyer, Vologda.

The Supreme Court expanded the interpretation of mitigating circumstances

The Supreme Court of the Russian Federation gave a number of important interpretations on the problems of criminal proceedings in the first 125-page review of its judicial practice this year [], published on April 14.

In particular, in the chapter of the review devoted to sentencing in criminal cases, the Supreme Court notes that active assistance in the detection and investigation of a crime is taken into account as a mitigating circumstance provided for in paragraph “g” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, regardless of the motives, prompted the person to take these actions.

According to the court verdict, T. was convicted under paragraph “c” of part 4 of article 162 of the Criminal Code of the Russian Federation, paragraph “h” of part 2 of article 105 of the Criminal Code of the Russian Federation and part 1 of article 158 of the Criminal Code of the Russian Federation. The Judicial Collegium for Criminal Cases of the Supreme Court, having considered the case on the appeal of the convicted person, changed the verdict regarding the punishment assigned to T., motivating its decision as follows.

By virtue of paragraph “i” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, active assistance in the detection and investigation of a crime is recognized as a circumstance mitigating the punishment of the guilty person. When imposing the punishment, the court did not recognize the presence of the indicated mitigating circumstance on the part of the convicted person and referred to the fact that T. did not take any active actions aimed at assisting the investigation. By the time T. was detained, law enforcement agencies already knew about his involvement in the crime. From the defendant’s explanations at the court hearing, it is clear that he decided to confess to committing the crime after his arrest under the pressure of the evidence presented to him. However, the court’s conclusions that active actions aimed at assisting the investigation must be understood as actions that “uniquely and irrefutably” expose the guilty person to the crime are erroneous.

According to the law, active assistance in the detection and investigation of a crime should be taken into account as a circumstance mitigating punishment if a person provided the inquiry or investigative authorities with information about a crime committed with his participation that was previously unknown to them. The motives that prompted a person to actively contribute to the detection and investigation of crimes do not have legal significance. As can be seen from the case materials, there were no eyewitnesses to the commission of crimes against the victim. The circumstances that gave rise to suspect T. of involvement in the murder of the victim were the facts that he had sold a telephone and gold items that belonged to the victim. The preliminary investigation authorities did not have any other evidence at the time of T.’s arrest.

At the first interrogation, T. gave detailed testimony about what happened, and then confirmed them at the scene of the crimes. At the same time, he provided information that was not known to the investigative authorities, in particular, he indicated the place where he hid the victim’s backpack, and when examining video recordings from surveillance cameras located near the scene of the crimes, he explained that he and the victim were recorded in the video recordings. From the decision to bring the defendant as an accused and the indictment, it is clear that the criminal acts are described in them as T testified. Recognizing T.’s testimony as reliable, the court noted that they contain such details of the incident that could only be known to the person directly who committed the crime. Thus, the factual circumstances of the present criminal case indicate that T. not only admitted his guilt in committing the crime, but even before charges were brought against him, he actively cooperated with the preliminary investigation authorities. As a result, the criminal case was uncovered, investigated and considered by the court in the shortest possible time.

Based on the above, the judicial panel of the Supreme Court changed the verdict and recognized as a circumstance mitigating the punishment of T. under clause “c”, part 4 of article 162, clause “h”, part 2 of article 105 of the Criminal Code of the Russian Federation, his active contribution to the disclosure and investigation of crimes and commuted the punishment both for each crime and for a set of crimes (definition No. 39-APU15-4).

———— [1] Review of judicial practice of the Supreme Court of the Russian Federation No. 1 (2016).