Article 19 of the Criminal Code of the Russian Federation with Commentary 2022: latest changes and amendments, judicial practice

Commentary to Art. 19 Criminal Code

1. The subject, as one of the elements of the crime, is characterized by the presence of three mandatory characteristics: a) it is an individual; b) sane and c) reached the age at which criminal liability begins.

2. In a number of crimes, in addition to the three mandatory signs, the law specifies additional signs that become mandatory. In this case, the subject of the crime becomes special. Such characteristics include, in particular, gender (Articles 106, 131 of the Criminal Code); increased age at which criminal liability begins (Articles 150, 151 of the Criminal Code); citizenship (Articles 275, 276 of the Criminal Code); official position (Articles 201, 285, 290 of the Criminal Code); profession (Articles 123, 124 of the Criminal Code); special position in relation to the victim (Article 125 of the Criminal Code).

3. A legal entity is not recognized in Russian criminal law as a subject of a crime. If a crime is committed in the course of the activities of a legal entity, it is necessary to identify within the structure of such a legal entity an entity subject to criminal liability. Moreover, such a subject can be defined by law (for example, in Articles 176, 177 of the Criminal Code) or by judicial practice (resolutions of the Plenum of the Supreme Court of the Russian Federation). In the absence of such clarification, if the crime constitutes a violation of a prohibition or failure to fulfill an obligation addressed to a legal entity, i.e. is associated with legally significant actions in the sense of other branches of law, a special subject is a person endowed by law, court decision, agreement, local act of a legal entity with the rights and obligations to act on behalf and in favor of the legal entity. If the crime does not fundamentally imply a violation of a special prohibition or failure to fulfill a special duty, but can - albeit in the interests of a legal entity or contrary to them - be committed by any subject (for example, Articles 179, 180 of the Criminal Code), the subject of the corresponding composition is general.

The concept of criminal prosecution

Lawyer Antonov A.P.

In the Criminal Code of the Russian Federation, the term “criminal liability” appears for the first time in Part 1 of Art. 1, which states that the criminal legislation of the Russian Federation consists of the Criminal Code of the Russian Federation, which should include new laws providing for criminal liability.

From the provisions of Part 2 of Art. 2 of the Criminal Code of the Russian Federation it follows that it is the Criminal Code of the Russian Federation that establishes the basis and principles of criminal liability.

The principles of criminal liability are the principles of legality (Article 3 of the Criminal Code of the Russian Federation), equality of citizens before the law (Article 4 of the Criminal Code of the Russian Federation), guilt (Article 5 of the Criminal Code of the Russian Federation), justice (Article 6 of the Criminal Code of the Russian Federation), humanism (Article 7 of the Criminal Code of the Russian Federation RF).

Only persons who have committed crimes are brought to criminal liability, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances (Article 4 of the Criminal Code RF).

No one can be held criminally liable twice for the same crime (Part 2 of Article 6 of the Criminal Code of the Russian Federation).

The basis of criminal liability, in accordance with Art. 8 of the Criminal Code of the Russian Federation is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation.

Article 55 5 of the Code of Criminal Procedure of the Russian Federation contains the concept of criminal prosecution - procedural activities carried out by the prosecution in order to expose a suspect accused of committing a crime.

Thus, criminal liability occurs under the above conditions contained in the Criminal Procedure Code of the Russian Federation, and involvement in it is carried out through the implementation of the procedures enshrined in the Criminal Procedure Code of the Russian Federation.

Criminal liability is a criminal legal concept and institution. The essence of criminal liability in a state governed by the rule of law in its most general form is a legal relationship, one party of which is the person who has committed a crime and is obliged to incur or undergo certain legal restrictions in connection with the crime committed, and the other is the state, which has the right to publicly condemn the perpetrator and determine his legal, justified and fair punishment.

Criminal prosecution is one of the functions of criminal proceedings, which has its own legal nature and is separated in the exercise of its powers from the function of defense and resolution of a criminal case. Criminal prosecution can be defined as the criminal procedural activities of relevant government bodies and officials to bring to criminal responsibility persons (persons) who committed crimes, including the initiation of the investigation process, and the investigation of the circumstances of the crime itself, the search and capture of the person who committed the crime, the approval of the person about guilt in a crime committed, by putting forward a thesis about his guilt before the judicial authorities, as well as proving his guilt in a court hearing, etc.

Some authors rightly believe that criminal prosecution, being a criminal procedural concept, means bringing a person as an accused (Article 171 of the Code of Criminal Procedure of the Russian Federation) so that the person can fully protect himself from the possibility of imposing an unreasonable obligation to be punished. In a conceptual sense, it is necessary to understand that only the accused can be held criminally liable. Bringing to criminal liability a person who is not placed in the position of an accused would deprive that person of the right to defense. Therefore, the legislator establishes, by the act of bringing a person as an accused, the limits of the proceedings in the case in personam.

At the same time, it seems that the approach to the concept under consideration should be expanded.

Indeed, bringing a person as an accused is closely related to the concept of criminal prosecution, but they are not identical.

Involving a person as an accused indicates the need for the state to exercise its right to apply legal restrictions on such person’s rights. This accusation actually determines the essence of such claims, the content of the “criminal legal dispute.” Involving a person as an accused does not mean finding him guilty of committing a crime, which can only be established by a court decision.

Under such circumstances, bringing a person as an accused is one of the stages of bringing a person to criminal responsibility, and not at all the first.

The possibility of shifting the initial stage of bringing a person to criminal responsibility to an earlier stage is indicated by some norms of the Code of Criminal Procedure of the Russian Federation.

Let us recall that criminal prosecution is a procedural activity carried out by the prosecution in order to expose not only the accused, but also the suspect

in committing a crime.

The suspect is also provided with the right to defense, as well as the opportunity to defend himself by all methods and means not prohibited by the Code of Criminal Procedure of the Russian Federation (Article 16 of the Code of Criminal Procedure of the Russian Federation). The prosecutor has the right, after initiating a criminal case, to conclude a pre-trial agreement on cooperation with the suspect (Part 5 of Article 21 of the Code of Criminal Procedure of the Russian Federation), termination of a criminal case in the event of the death of the suspect is impossible without the consent of his close relatives (Clause 4 of Part 1 of Article 24 of the Code of Criminal Procedure of the Russian Federation , Resolution of the Constitutional Court of the Russian Federation dated July 14, 2011 N 16-P “In the case of verifying the constitutionality of the provisions of paragraph 4 of part one of Article 24 and paragraph 1 of Article 254 of the Criminal Procedure Code of the Russian Federation in connection with complaints from citizens S.I. Alexandrin and Yu. F. Vashchenko"), a preventive measure may be applied to the suspect (clause 13 of Article 5 of the Code of Criminal Procedure of the Russian Federation), criminal prosecution against the suspect may be terminated (Article 27 of the Code of Criminal Procedure of the Russian Federation).

In addition, in accordance with clause 2, part 1, art. 154 of the Code of Criminal Procedure of the Russian Federation, a criminal case against a minor suspect brought to criminal liability can be separated into a separate proceeding, which indicates that a person will be brought to criminal liability already at the time he is recognized as a suspect.

In accordance with Art. 46 of the Code of Criminal Procedure of the Russian Federation, a suspect becomes a person against whom a criminal case has been initiated on the grounds and in the manner established by Ch. 20 of the Code of Criminal Procedure of the Russian Federation, or a person who was detained in accordance with Art. Art. 91, 92 of the Code of Criminal Procedure of the Russian Federation, or to whom a preventive measure has been applied before charges are brought in accordance with Art. 100 of the Code of Criminal Procedure of the Russian Federation, or who has been notified of suspicion of committing a crime in the manner established by Art. 223.1 Code of Criminal Procedure of the Russian Federation.

Under such circumstances, and also taking into account that the legislator also refers to the expiration of the statute of limitations for bringing to criminal liability (Article 78 of the Criminal Procedure Code of the Russian Federation) as “expiration of the statute of limitations for criminal prosecution” (Clause 3, Part 1, Article 24 of the Criminal Procedure Code of the Russian Federation), which prevents Even the initiation of a criminal case, criminal liability can be considered from the moment a criminal case is initiated against a specific person.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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Second commentary to Art. 19 of the Criminal Code of the Russian Federation

1. The signs specified in Article 19 of the Criminal Code are general and mandatory for criminal liability. Therefore, in the title of the commented article, the legislator characterized them as “General conditions of criminal liability.” Consequently, they must be met by the subjects of all crimes, including those whose offenses contain special (special) requirements for the subject.

2. Individual - legal status. The theory of law distinguishes, in addition to the individual, the status of a legal entity. Both of these statuses perform one function in law - they are a condition of responsibility. Different types of legal liability correspond to different legal statuses of their subjects. The specificity of criminal liability is its personal nature. Therefore, the subject of a crime (as well as the subject of liability) can only be an individual.

3. Sanity - the mental status of the subject. Unlike legal statuses, it has not a legal, but a natural (presumed) basis: every person is considered sane if he is not declared insane in the manner prescribed by law. Moreover, the significance of this status is limited only by the circumstances of the commission of a crime (another offense). The question of the sanity or insanity of a person arises only in connection with “imputation,” i.e. the question of responsibility for the act he committed. Outside of these circumstances, it is impossible to talk about either the insanity of a person or the status meaning of insanity. Sanity as the mental status of the subject of a crime determines a person’s mental ability to act as a participant in relations with other people, society and the state.

4. The sign of the subject of a crime is not any age, but only that established by criminal law. This sign, although it has a socio-psychological basis, is also status. In contrast to the legal status, this status can be conditionally designated as social, which determines a person’s legally recognized ability to act as an active participant in relations with other people, society and the state.

Third commentary to Article 19 of the Criminal Code of the Russian Federation

1. Russian criminal legislation provides for the general conditions of criminal liability necessary to recognize a person as the subject of a crime. The subject of a crime can only be a person who is capable of realizing his actions, directing them, and also bearing legal responsibility for their commission. Individuals include citizens of the Russian Federation, stateless persons, as well as foreign citizens. The specifics of bringing foreign citizens to criminal liability are given in the comments to Art. Art. 11 and 12 of the Criminal Code. According to the criminal law of the Russian Federation, legal entities are not recognized as subjects of a crime.

2. Sanity means such a mental state of a person in which his intellect and will allow him to control his behavior and realize not only the illegality of the act being committed at the time of its commission, but also the ability to bear criminal liability in connection with this. The number of sane persons also includes persons who have some deviations in mental health (anomalies in the psyche), but do not deprive them of the ability to realize the social danger and the illegality of the acts they commit. At the same time, the criminal law gives the court the right to take this circumstance into account when sentencing a person or to use this condition of the subject as a legal basis for prescribing compulsory medical measures (see commentary to Article 97 of the Criminal Code).

3. An important condition is the age of criminal responsibility, failure to reach which allows us to say that there are no legal grounds for bringing a person to criminal responsibility.
The Criminal Code of the Russian Federation has defined two types of age: general and reduced. The general age of criminal responsibility is 16 years, and for some crimes, the list of which is exhaustive, responsibility begins at the age of 14 (see commentary to Article 20 of the Criminal Code). ‹ Chapter 4. Persons subject to criminal liabilityUp Article 20. Age at which criminal liability begins ›

Special subject and its criminal legal significance

Special subject of the crime

is an individual who, along with the general characteristics of a subject (reaching the age of criminal responsibility and sanity), also possesses additional characteristics that are mandatory for a given crime. Additional characteristics of the subject of a particular crime are either directly named (or described) in the disposition of the relevant norm, or are established through interpretation. Sometimes the characteristics of a special subject are indicated in a special norm.

All signs of a special subject can be divided into three large groups:

signs characterizing the social role and legal status of the subject:
official position of the person (official in general or certain types of officials: head of an organization, government representative, law enforcement officer, judge, prosecutor, etc.);
profession, type of activity, nature of the work performed (person driving a vehicle; athlete; doctor; teacher; private notary; private auditor; ship captain, etc.);
attitude towards military service (serviceman, conscript);
participation in the trial (witness, victim, expert, translator);
conviction or detention (a person sentenced to imprisonment; a person serving a sentence or in pre-trial detention);
characteristics of the roles performed in the process of committing crimes - organizer, leader, participant, accomplice;
physical properties of the subject
– signs related to:
semi (male);
state of health and ability to work (a person with a venereal disease or HIV-infected; an able-bodied person);
relationship between the subject and the victim
– signs characterizing:
service relationships (subordinate, boss);
other relationships (person on whom the victim depends financially; guardian).

Criminal liability of persons who committed a crime while intoxicated

– a person who commits a crime while intoxicated is subject to criminal liability. In this case, we are talking about physiological intoxication, which does not exclude sanity, since there is no medical criterion for insanity. In this case, the state of intoxication is neither a circumstance mitigating punishment nor a circumstance aggravating punishment.

Unlike physiological intoxication, pathological intoxication refers to temporary mental disorders and entails recognition of the person’s insanity. Signs by which pathological intoxication can be determined include:

asthenic factors suffered the day before (physical or mental fatigue of the face);
the occurrence of this condition after drinking a small amount of alcohol;
presence of psychomotor agitation;
lack of purposefulness of actions, their external lack of motive, inadequacy of the surrounding reality;
subsequent deep sleep;
forgetfulness, etc.