Last updated - January 2022
Mitigating circumstances of a criminal punishment are certain facts that reduce the degree of danger of the crime committed by the accused, which are the basis for mitigating the sentence of the convicted person.
They testify to the positive traits of his personality, indicate special circumstances at the time the crime was committed, or confirm his repentance. The law obliges them to be taken into account when the court determines the punishment.
The list of such circumstances is given in the Criminal Code of the Russian Federation, but it is not exhaustive. This means that the court, when passing a sentence, can be guided by other facts if it comes to the conclusion that they really reduce the danger of the crime.
The importance of mitigating circumstances for criminal proceedings
This concept, along with aggravating circumstances, is the most important in criminal law and is widely used in the practice of criminal proceedings.
The obligation to take such circumstances into account when determining the penalty rests with the court in accordance with the requirements of paragraph 3 of Art. 60 of the Criminal Code of the Russian Federation. This ensures the principle of fairness when determining a preventive measure. If at trial it turns out that the danger of the crime is less than initially assumed, then the liability must be less strict.
The court accepts such circumstances not only to mitigate the sentence, but also to completely release it. A person who has committed a minor crime can expect to be released from punishment if he has not previously been convicted. This is possible subject to active cooperation with the investigation, reconciliation with the victim and full compensation for the harm caused to him. In this case, the court must take into account what impact this will have on the correction of the person who has stumbled.
If mitigating circumstances were not taken into account by the judicial authority when determining the punishment, this should be considered a reason to cancel the sentence already passed and reconsider the case (clause 1 of Article 382 of the Code of Criminal Procedure of the Russian Federation).
Mitigating circumstances provided for in Art. 61 of the Criminal Code of the Russian Federation
Committing a crime of minor or medium gravity for the first time by accident
Such a crime cannot be serious. Crimes of two categories are considered non-serious: minor and moderate. Crimes of minor gravity include acts for which criminal liability is imposed for no more than 3 years of imprisonment, and crimes of moderate gravity - no more than 5 years if there is intent and no more than 3 years if the law was violated through negligence.
This is the defendant's first crime. This category also includes persons who have violated the law more than once, but none of them resulted in a conviction, or one was passed but did not enter into legal force.
This also includes the following cases equating to a violation of the criminal law for the first time:
- removal of a criminal record in the event of a decision on amnesty or pardon of a convicted person;
- the expiration of the statute of limitations for previous crimes, during which the perpetrators may be subject to criminal prosecution;
- the end of the deadlines provided for the execution of the sentence;
- the convicted person has previously committed other crimes, but the conviction was withdrawn or expunged.
By chance coincidence is meant a set of factors that prompted a person to go against the law, but they are not decisive for his personality. Illegal behavior should not be typical for him. Whether there was a coincidence of circumstances is decided by the court individually for each specific case. Such cases include, for example, a crime resulting from a sudden conflict with the victim.
Minority
At the time of the commission of the unlawful act, the offender must be under 18 years of age.
It does not matter here whether he was 18 years old on the day the sentence was pronounced or not; the decisive factor is precisely his age at the time of criminal acts (or inaction).
Minority is recognized as a mitigating circumstance, because during adolescence the formation of a person’s personality is not yet completed. A teenager is not always able to give an objective assessment of the situation. Also at this age, a minor is more suggestible than an adult and is more susceptible to the influence of other people.
Pregnancy
This circumstance is included in the list primarily because of the need to take care of the health of the pregnant child and the expectant mother.
Also, during pregnancy, a woman experiences certain changes in her hormonal levels, as a result of which her mood is often unstable. This may be the reason she commits rash acts.
The defendant has young children
This may not always reduce the guilt of the defendant.
Thus, if the perpetrator, due to failure to fulfill the duties of raising children, was deprived of parental rights, and even more so committed illegal actions against children, including adopted children, there will be no talk of any mitigation of criminal liability.
If the court finds that the perpetrator actively participated in raising the children, provided them financially, and showed himself to be an exemplary parent, this fact will be recognized as a mitigating circumstance. Accordingly, the convicted person will receive a more lenient punishment.
Committing a crime due to a combination of difficult life circumstances, or motivated by compassion for the victim
It is precisely such circumstances that should push a person who finds himself in a difficult situation to violate the criminal law. These include:
- lack of funds and subsequent hunger (with loss of work and lack of other sources of income), which became the reason for the theft;
- identification of a serious illness in a person found guilty or in his relative, as a result of which the theft of medicines or painkillers based on narcotic substances was committed.
These may be other circumstances , if the court considers them to be sufficiently difficult for a particular person who is forced to break the law because of them.
In Russia, euthanasia is illegal; any means of committing it are equated to premeditated murder. However, the person guilty of committing it has the right to expect a less severe punishment than in the general case, if it can be proven that he helped the person die out of compassion, in order to save him from suffering.
Committing a crime as a result of coercion (both physical and psychological), as well as due to financial, official or any other dependence
Will be counted as mitigation if the defendant's will was unlawfully suppressed. At the same time, he must have a real opportunity to resist such influence, which for some reason was not used.
For example, the head of an organization forces a subordinate to falsify documents, threatening him with dismissal. The subordinate is aware of the criminal nature of such actions, but is afraid of losing his job if he refuses to carry out an illegal order. At the same time, it cannot be said that he had no choice: he had the opportunity to refuse to carry out the illegal order.
In the absence of the opportunity to resist coercion (for example, in the case of a real threat to the life of the coerced person), there is no corpus delicti at all and it is considered committed in a state of extreme necessity.
A crime is committed when the legality of one of the following actions is violated:
- Application of the necessary defense (for example, if the defendant killed someone who was trying to rob him with a targeted shot in the head, and the robber was unarmed and threatened only in words).
- Detention of a person suspected of committing illegal acts (when a law enforcement officer exceeds the limits of such detention).
- Actions when in a state of emergency. Thus, if a person who urgently needs a drug steals it by breaking into a closed pharmacy, criminal punishment will not be applied to him. If he also steals other medicines or causes other damage to the pharmacy that is not related to the search for the necessary medicine, then he will be held accountable before the law for such actions.
- Justified risk. A risk is not considered justified if achieving the goal is realistic without taking risky actions. If you can’t do without risk, you need to take care in advance to minimize the likely negative consequences.
- Execution of an order or order received by a person (if the execution of obviously illegal instructions, criminal liability from the executor is not removed).
The victim committed an illegal or immoral act, which served as an impetus for the commission of a crime against him
This circumstance must be distinguished from affect, when, due to uncontrollable excitement provoked by the inappropriate behavior of the victim, a person for some time practically loses the ability to control his actions (these are separate articles of the Criminal Code of the Russian Federation).
More: Murder committed in a state of passion
Here we mean violations of the law not only during the heat of passion, but also when in a mental state close to normal.
When passing a sentence, the court considers the nature and degree of illegality of the behavior of the person recognized as the victim. For example, the intentional infliction of grievous harm to the health of a child for stealing strawberries from the garden cannot be justified in any way; his behavior in this situation is not a factor mitigating the punishment.
Confession, assistance in solving and investigating a crime, exposing and prosecuting other accomplices, searching for illegally obtained property
A confession is counted if the accused voluntarily reported his crime to law enforcement agencies. The form of this message can be either written or oral.
A confession will be taken into account when sentencing and imposing punishment even in cases where:
- the criminal hid from the investigation for a long time, and then voluntarily came to law enforcement agencies with a statement;
- the accused, after arrest, voluntarily confessed to another crime, this confession is also accepted as a confession;
- the criminal voluntarily reported the crime he committed, then refused this testimony;
If the accused, after his arrest, only confirmed the information that the investigation had, a confession will not be issued (for example, if the person detained on suspicion of committing a crime did not report anything new).
Assistance in the investigation of a crime means that the accused voluntarily gives testimony that helps to obtain information that the investigative authorities did not previously have (reporting the location of a cache of crime instruments, presenting physical evidence, assistance in investigative experiments and expert studies).
Providing medical or other necessary assistance to the victim immediately after the commission of a crime, voluntary compensation for harm caused (including moral), as well as other actions aimed at eliminating the consequences of the offense
The establishment of these facts may indicate that the offender realized his guilt and repented of his crime. This means that the degree of his danger to society has decreased significantly.
Murder by excess of self-defense
The ability to stand up for your life in the event of an attack is the right of every citizen of the Russian Federation. It is enshrined constitutionally and has one “but”. In self-defense, the victim can only use those measures that are not prohibited by law.
Exceeding self-defense occurs as a result of overestimating the current situation and one’s capabilities. For example, the killing of a thief while attempting to pickpocket, or the victim killing an attacker who is much weaker than him physically.
If a physically strong and healthy man uses all his force against a pregnant woman or a teenager, he will undoubtedly exceed the permissible limit of self-defense.
The following will not be considered self-defense:
- if a person first provokes a conflict and then begins to defend himself;
- if the attacker stopped his threats and retreated, and the victim continues to attack;
- if the attempt occurs not on life and health, but on material assets; It will not be considered self-defense if the victim's cell phone was stolen and the victim responded by committing murder.
It can be very difficult to prove that the killer did not exceed the necessary measures during the attack. It is also necessary to interview witnesses who can confirm that the victim had no other choice.
Otherwise, the victim becomes the accused and is liable to the fullest extent of the law.
What other circumstances may be recognized by the court as mitigating?
The court has the right to recognize other circumstances as mitigating, but the verdict must contain arguments justifying such a decision.
In Russian judicial practice, these are most often recognized as:
- Sincere repentance for what they have done (this refers to cases where the perpetrator, for certain reasons, cannot compensate for the harm he has caused).
- Full or partial admission of guilt in committing a criminal act.
- Compensation for harm suffered by the injured party as a result of a crime, even if this was not done voluntarily.
- Absence of serious or irreparable consequences as a result of the crime committed.
- Less active participation in a group crime compared to other accomplices. For example, when a group of people stole someone else's property, the role of the defendant was minimal. The defendant did not personally enter the apartment, did not break the door, and did not take anything from the stolen property. He only watched to detect the owner's return or other people visiting the apartment.
- A petition from the team in which the person guilty of the crime worked for a more lenient punishment.
- Participation in military operations and hostilities.
- Completion of training at universities or institutions of secondary vocational education.
- Low family income.
- Certain health problems (these do not have to be severe or incurable diseases).
- The victim's request for leniency towards the criminal.
These are the most common grounds for mitigation of punishment, but they can also be any other facts identified by the court and relevant to a particular case.
If a mitigating circumstance is not expressly provided for by the Criminal Code of the Russian Federation, then the court is not obliged to make a decision by analogy with similar criminal cases considered earlier. Each specific case is considered individually.
Also, when assigning punishment, the mental state of the offender is taken into account. With certain mental disorders, the offender may be declared sane. However, he can control his behavior and realize the consequences of illegal activities to a lesser extent than a healthy person. In such a situation, the court has the right to mitigate the punishment.
How do mitigating circumstances affect punishment?
The Criminal Code does not contain special rules regulating the terms and amounts of mitigating punishment. This is determined by the court at its discretion within the limits of the article for a specific crime in the presence of the above mitigating circumstances.
However, in the article the legislator highlighted several provisions that he considered to be of particular importance.
If mitigating circumstances are confirmed in paragraphs 9 and 10 of this article
The maximum limit of punishment cannot be more than 2/3 of the maximum term or amount of punishment provided for in the relevant article. The exception is crimes that are punishable by life imprisonment or the death penalty; in such situations, the punishment will remain the same.
the last 2 points from the list of mitigating circumstances. It is they, according to the legislator, who should encourage the offender to begin to cooperate with the investigation and make amends for the harm caused to the victim.
The death penalty is still provided for in the Criminal Code, but it is not currently imposed due to the moratorium. An alternative measure that replaces it is life imprisonment.
When concluding a pre-trial cooperation agreement
If the accused has entered into a cooperation agreement with law enforcement agencies at the pre-trial stage, he cannot be given a punishment greater than 1/2 of the maximum possible under his article.
If the relevant article provides for life imprisonment or the death penalty, then they are not applied. In this case, the maximum term of imprisonment for such crimes is set at no more than 2/3 of the most severe punishment in the form of imprisonment for a certain period.
A pre-trial cooperation agreement means a kind of transaction, one of the parties to which is the state prosecution, and the other is the representative of the defense of the accused.
Such an agreement stipulates that the accused, in exchange for cooperation with the investigation, receives a less severe punishment. Its duration or size may also be specified in the text of the agreement.
In a special order or abbreviated form
If the case is examined in accordance with the provisions of Chapter 40 of the Code of Criminal Procedure of the Russian Federation, i.e. in a special manner, and the accused agrees with the prosecution, then the punishment in this case cannot be more than 2/3 of the most severe in such cases. If the inquiry into the case was carried out in an abbreviated form (Article 226.9 of the Code of Criminal Procedure of the Russian Federation), the amount or term of punishment cannot be more than 1/2 of the maximum sanction under the article.
In all other cases, mitigating circumstances are also subject to consideration in court, although the Criminal Code of the Russian Federation contains no special rules regulating the imposition of punishment for them. Punishment, as follows from the general meaning of Art. 61 of the Criminal Code must be mitigated, and to what extent - the court decides at its discretion.
The rules establishing the limits of punishment in the presence of mitigating circumstances are valid only in the absence of circumstances aggravating the guilt of the defendant. If there are simultaneously aggravating circumstances in the case of the criminal, they are also taken into account by the court and serve as the basis for imposing a more severe sentence.
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Murder committed in violation of necessary measures for arrest
The arrest of the offender by the victim is considered a necessary defense and is equivalent to lawful actions when he has suffered harm equal to his resistance.
Suppression will not be considered lawful if:
- the offender did not resist;
- if his death occurred as a result of an escape attempt.
A person who has committed an attack with the intent of robbery or murder, with the aim of causing damage to health or material values, is subject to detention. If the detention process took place without these reasons, it will be considered illegal and will entail punishment for intentional deprivation of liberty.
Detention will also be considered illegal if its purpose is not to deliver the offender to the authorities, but to commit lynching over him.
