Types of criminal liability in the Russian Federation and the penalties provided for them are regulated in the content of the Criminal Code and the Code of Criminal Procedure of the Russian Federation. One of the indicators that significantly influences the assigned measure of liability is the presence of negligence. If this fact was discovered in the crime committed during the investigation, then the citizen may be given a less severe punishment, or he may be completely released from it.
It is impossible to compile a complete list of situations in which the term “negligence” can be used. The reason for this is that everything depends on the circumstances of a particular situation. Therefore, it is important to know what is meant by the concept of “negligence”, and by what characteristics and indicators the fact of its presence is established by the investigation.
The concept of a crime committed through negligence and the nuances of its definition
In the first paragraph of Art. 26 of the Criminal Code of the Russian Federation dated June 13, 1996 (current version dated April 5, 2022 with additional amendments dated April 8, 2022) states that a crime of negligence is an act that violates the current legislation, committed due to frivolity or negligence.
Negligence is understood as a situation where a citizen who committed a crime did not foresee the possibility of a dangerous situation arising as a result of his actions or inaction, although he would have done so with due care.
Frivolity is understood as a situation where a citizen who committed a crime foresaw the possibility of a dangerous situation occurring, but without good reason hoped to prevent it or prevent it at his own expense.
From a psychological point of view, the concept of “crime due to negligence” can be interpreted as a situation where a citizen, due to his arrogance or ignorance, neglected the current legislative norms and the interests of third parties in the person of other people and organizations.
Commentary to Art. 26 of the Criminal Code of the Russian Federation
1. In accordance with the original wording of Part 2 of Art. 24 of the Criminal Code, an act committed through negligence was recognized as a crime only if it was specifically provided for by the relevant article of the Special Part of the Criminal Code. However, Federal Law dated June 25, 1998 N 92-FZ, Part 2, Art. 24 of the Criminal Code was set out in a new edition, according to which only a careless form of guilt is assumed only under the condition that this is directly provided for by the corresponding article of the Special Part of the Code. Thus, the legislator returned to the concept of crimes with an alternative form of guilt: if, when describing a crime, the form of guilt is not named and does not clearly follow from the ways of legislative description of this act, then it can be committed either intentionally or through negligence (for example, HIV infection). infection, disclosure of state secrets).
As can be seen from the legislative definition of negligence, liability for crimes committed through negligence usually occurs in the event of causing socially dangerous consequences. In their absence, the act or inaction itself, as a rule, does not entail criminal liability. Only in some cases does the legislator allow liability for actions committed due to negligence, regardless of the occurrence of socially dangerous consequences (for example, disclosure of state secrets) or for actions that created a threat of causing grave consequences (for example, violation of safety rules at explosive objects).
2. The current Criminal Code, having legislated the division of negligence into types, considers frivolity and negligence as such (Part 1, Article 26).
3. A crime is recognized as committed due to frivolity if the person who committed it foresaw the possibility of the onset of socially dangerous consequences of his action or inaction, but without sufficient grounds for this he arrogantly counted on their prevention (Part 2 of Article 26).
Foreseeing the possibility of socially dangerous consequences of one's action or inaction constitutes the intellectual element of frivolity, and arrogant calculation to prevent them is its volitional element.
Characterizing the intellectual element of frivolity, the legislator indicates only the possibility of foreseeing socially dangerous consequences, but omits the mental attitude to action or inaction. This is explained by the fact that the actions themselves, taken in isolation from the consequences, usually do not have criminal legal significance. At the same time, a person acting out of frivolity is always aware of the negative social significance of possible consequences and that is why he strives to prevent them. Consequently, in case of frivolity, the perpetrator is aware of the potential social danger of his actions (inaction).
In its intellectual element, frivolity has some similarities with indirect intent. But with indirect intent, the perpetrator foresees a real (for a given case) possibility of the occurrence of socially dangerous consequences, and with frivolity, this possibility is foreseen as abstract: the subject foresees that such actions in general can lead to socially dangerous consequences, but believes that in this particular case they will not come.
Foreseeing an abstract (i.e., abstracted from a given situation) possibility of the onset of socially dangerous consequences is characterized by the fact that the perpetrator is not aware of the actual development of the causal relationship, although with the proper tension of his mental powers he could have realized this. He takes a frivolous, frivolous approach to assessing those circumstances that, in his opinion, should have prevented the onset of a criminal result, but in fact turned out to be unable to counteract its onset.
The main difference between frivolity and indirect intent lies in the content of the volitional element. If, with indirect intent, the perpetrator consciously allows the occurrence of socially dangerous consequences, i.e. treats them favorably, then with frivolity there is not only a desire, but also a conscious assumption of these consequences; on the contrary, the subject strives to prevent their occurrence and treats them negatively. The difference between indirect intent and thoughtlessness is illustrated by the following example.
By prior agreement between themselves, S. and I., for the purpose of theft, entered the house of 76-year-old A., beat her, causing serious harm to her health, incl. fractures of the nasal bones, cheekbones and base of the skull, they tied her up and gagged her. After that, they stole the things they were interested in and disappeared. As a result of mechanical asphyxia, which developed as a result of the insertion of a rag gag into her mouth, A. died at the scene. The court of first instance recognized the act of depriving A. of life as causing death by negligence, based on the testimony of the defendants that they beat A. not for the purpose of killing, but to break her resistance; at the same time, they hoped that in the morning relatives or friends would come to A. and free her. However, the Military Collegium of the Supreme Court of the Russian Federation overturned the verdict and sent the case for a new trial, indicating the following.
The convicts knew about A.’s advanced age, but they used life-threatening violence against her, and then, tying her hands and feet, they left her with a broken face, a bloodied nasopharynx and a gag that closed her airway, throwing her with a blanket and a mattress. For S. and I., A.’s helpless state was obvious, and they were indifferent to this, as well as to the possible consequences. The error of the trial court was the incorrect assessment of the mental attitude of the perpetrators to the consequences of the committed act as careless, whereas there was indirect intent.
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BVS RF. 1997. N 3. S. 8, 9.
In case of criminal frivolity, in contrast to indirect intent, the consciousness and will of a person are not indifferent to the possible negative consequences of their act, but are aimed at preventing them. The law characterizes the volitional content of frivolity not as hope, but precisely as a calculation to prevent socially dangerous consequences, which has very real, although insufficient, grounds. In this case, the guilty person relies on specific circumstances that, in his opinion, can counteract the onset of a criminal result: personal qualities (strength, dexterity, experience, skill), the actions of other persons, mechanisms, as well as other circumstances, the significance of which he assesses incorrectly, as a result, the expectation of preventing a criminal result turns out to be unfounded, arrogant, and without sufficient grounds for this.
An illustration of frivolity can be seen in the case of Sh., convicted of murdering the teenager O. The Plenum of the Supreme Court of the USSR in the Resolution on this case rightly stated: “... in this case Sh. showed criminal arrogance, since he knew about the danger that electric current poses to humans voltage of 220 V, but frivolously hoped to prevent serious consequences. At the same time, he did not count on chance, but on such objective factors that, in his opinion, excluded the possibility of grave consequences.”
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BVS USSR. 1969. N 1. P. 24.
Calculation, we repeat, on specific factors that, in the opinion of the perpetrator, can prevent the onset of socially dangerous consequences significantly distinguishes criminal frivolity from indirect intent, in which such calculation is absent, although an unfounded hope is possible that harmful consequences will not occur.
A crime is considered committed through negligence if the person who committed it did not foresee the possibility of socially dangerous consequences occurring, although with the necessary care and forethought he should and could have foreseen them (Part 3 of Article 26).
4. Negligence is the only type of guilt in which a person does not foresee the socially dangerous consequences of his act either as inevitable, or as actually or even abstractly possible.
The essence of this type of careless guilt lies in the fact that a person, having a real opportunity to foresee the socially dangerous consequences of his actions, does not show the necessary care and foresight to take the necessary volitional actions to prevent these consequences. Criminal negligence represents a unique form of mental attitude of the perpetrator to the socially dangerous consequences of his actions, in which the volitional element is characterized by the volitional nature of the action (inaction) performed and the absence of volitional acts aimed at preventing socially dangerous consequences.
Negligence is characterized by two signs: negative and positive.
A negative sign of negligence - a person’s failure to foresee the possibility of socially dangerous consequences occurring - includes, firstly, a lack of awareness of the social danger of the act being committed, and secondly, a lack of foresight of criminal consequences. A positive sign of negligence is that the perpetrator should and could have shown the necessary care and foresight and foreseen the occurrence of socially dangerous consequences actually caused. It is this feature that turns negligence into a type of guilt in its criminal legal understanding. It is established using two criteria: obligation means an objective criterion, and foreseeability means a subjective criterion of negligence.
The objective criterion of negligence is normative in nature and means a person’s obligation to foresee the possibility of socially dangerous consequences while observing the general civil requirements of the necessary care and forethought. This responsibility may be based on the law, the official status of the perpetrator, professional functions or community rules, etc. The absence of an obligation to foresee the consequences excludes the guilt of the person in actually causing them. But the presence of such an obligation in itself is not a sufficient basis for finding a person guilty.
If there is an obligation to foresee the consequences (objective criterion of inevitability), it is also necessary to establish that the person in this case had a real opportunity to foresee them (subjective criterion), but did not realize this opportunity and did not avoid the consequences.
The subjective criterion of inevitability means the personal ability of a person in a specific situation and taking into account his individual qualities to foresee the possibility of the occurrence of socially dangerous consequences. It follows that the possibility of foreseeing consequences is determined, firstly, by the characteristics of the situation in which the act is committed, and secondly, by the individual qualities of the perpetrator.
The situation should not be overly complex for the task of foreseeing the consequences to be in principle solvable. And the individual qualities of the perpetrator (his physical characteristics, level of development, education, professional and life experience, state of health, degree of susceptibility, etc.) must allow him to adequately perceive information arising from the situation in which the act was committed, and make reasonable conclusions and correct assessments. The presence of these two prerequisites makes it really possible for the perpetrator to foresee socially dangerous consequences.
An example of negligence is the following case.
While drinking alcohol, M. quarreled with K. and at the moment when she raised a porcelain cup to her mouth to drink, he hit her in the face with his hand. The broken cup caused damage to the eye, which in itself, according to the examination, was a moderate injury to health, but resulted in permanent changes in the eye and permanent disfigurement of the face. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation changed the sentence by which M. was convicted of intentionally inflicting grievous bodily harm, and qualified M.’s actions as causing such harm through negligence, since, when striking the face, he did not foresee the occurrence of grievous harm, although should and could have foreseen such consequences.
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BVS RF. 1994. N 5. S. 5, 6.
5. Legislative formulations of frivolity and negligence are focused on crimes with a material composition. In this regard, the question arises about the existence of negligence in crimes with a formal composition.
There cannot be negligence in the form of frivolity (as well as indirect intent) in crimes with a formal composition, since their psychological essence is associated exclusively with the attitude towards socially dangerous consequences, which in such compositions are not included in the substantive content of guilt. And the issue of negligence in such crimes must be resolved in accordance with the current law.
In introducing the rule on innocent causing of harm, the legislator provided for two options for the subjective case: one of them is focused on formal elements, and the second - on material ones. The law recognizes the commission of an act, the composition of which is formal, as innocent, “if the person who committed it did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction)” (Part 1 of Article 28 of the Criminal Code). An unambiguous conclusion follows from this: if a person was not aware of the social danger of his act, but according to the circumstances of the case he should and could have been aware of it, the act is considered guilty. In this case, the fault is expressed as negligence in the form of negligence.
Objectivity and subjectivity in the issue of crimes due to negligence
A violation of the law committed by a citizen through negligence or frivolity may have both positive and negative characteristics. They can have a decisive influence on the investigation, which will directly affect the assigned measure of responsibility or the lack thereof.
The first includes objective criteria. They mean situations where a citizen, during the commission of a crime through negligence, acted consciously in compliance with legal powers and his work or official duties. That is, in the course of his actions he understood the whole situation, but due to the prevailing circumstances he committed a crime through negligence.
The second includes subjective criteria. They mean situations where a citizen could have prevented or prevented the commission of a crime, but continued to act or fail to act, arrogantly relying on his physical, personal, mental or psychological qualities.
Arbitrage practice
When making a final decision on a case, the judge is largely guided by his subjective opinion and personal attitude towards the unlawful act. Therefore, acting within the framework of the law, different judges may make different decisions on similar cases. This is evidenced by the analysis of judicial practice and judicial precedents in Russia.
In total, the judge can make only two possible decisions - a guilty verdict indicating a specific preventive measure (including release from punishment with probation). The second option is release from liability.
After the court decision is announced, participants in the proceedings have one month to file an appeal in the case. This can be done by a guilty citizen or an injured party who disagrees with the decision made.
Penalties for crimes due to negligence
It is impossible to unambiguously compare possible crimes of negligence with the punishments assigned for them. It all depends on the circumstances of a particular situation, namely the type of crime, its severity and the number of people affected.
In general, depending on the norm of criminal law used, a person who has committed an unlawful act through negligence or frivolity may be held liable in the form of:
- fine;
- corrective or compulsory forced labor;
- conditional or real imprisonment.
On a note:
The amount of the monetary penalty imposed, the number of hours assigned to work and the term of suspended or actual imprisonment cannot be stated unambiguously. Everything will be determined by the articles of the Criminal Code and the Code of Criminal Procedure of the Russian Federation, under which the committed act falls.
Assignment of punishment
Not all types of crimes may cause unintentional harm within the framework of criminal law. Thus, the Criminal Code of the Russian Federation states that the following illegal acts can be committed through negligence:
- Art. 118 - causing harm to health. This applies only to grave harm, that is, such physical injuries that resulted in complete dysfunction of individual organs/systems of the body and do not provide the possibility of a person’s recovery in the future. Even if injuries provide the opportunity for recovery in the future, but initially carried a risk to a person’s life, it will be possible to qualify physical harm as grave damage.
- Art. 109 - murder by negligence.
In addition, reckless intent can be applied to other articles of the Russian criminal code.
Exemption from liability for crimes due to negligence
A citizen may be completely exempt from responsibility for an act committed if, due to his mental, physical or intellectual characteristics, he could not realize the illegality of his actions.
This is possible if during the investigation it is proven that among the circumstances of the crime there was a fact of unconscious infliction of harm. It is recognized as such if the following indicators are met:
- lack of corpus delicti;
- the impossibility of foreseeing the harm that was caused as a result of the act due to the lack of mental or intellectual abilities of the citizen.
Important:
If the citizen was completely healthy at the time of the action, was aware of what was happening and understood where he was, then the current situation cannot be qualified as unconscious harm. Moreover, it does not matter at all whether he knew about the illegality of his actions or not. He will not be released from liability. However, if the investigation finds in the circumstances of the situation signs of a crime of negligence, then the liability will be mitigated.
Examples of crimes of negligence and frivolity
As has already been said, it is impossible to unambiguously compile a list of illegal actions that can be classified as crimes committed through negligence. It all depends on the circumstances of a particular situation.
However, several examples can be mentioned. They are presented in the table:
| Description of the circumstances of the crime | Classification of crime (negligence or frivolity) |
| The driver of the car slightly exceeded the speed limit in city traffic, assuming that if unusual circumstances occurred, he would be able to control the car and brake in time. As a result, the driver hit a pedestrian, who, in turn, carelessly entered the crossing. The citizen who was hit was seriously injured. | Frivolity - the citizen acted arrogantly, assuming that he could maintain complete control over the situation. |
| A citizen living in a private house, having all the necessary permits, decided to shoot with an air gun towards the fence. A person was passing behind the fence at the time of the shooting. As a result, a passerby was slightly injured. | Negligence – the citizen did not take care to create a safe environment for all possible participants in the situation. |
| The veterinarian violated his job description, which led to the infection of other animals in the nursery with some disease. | Frivolity - a citizen violated the requirements of his job description, relying on his abilities and skills. |
| During the hunt, one citizen accidentally shot another, mistaking him for an animal. | Negligence - the citizen did not finally make sure that it was an animal in front of him and not another person. |
What is definitely not a crime of negligence?
Any crime will not be considered committed through negligence if the investigation reveals intent in the actions of the perpetrator. The current legislation distinguishes between two categories of intent:
- straight;
- indirect.
By direct we mean a situation where the guilty citizen understood perfectly well that his actions or, conversely, his non-intervention pose a danger to others. The exception is situations where a citizen understood the illegality of what was happening, but due to a lack of any skills did not attempt to counteract it.
Indirect intent refers to situations where a citizen understood the danger of his actions, but deliberately continued, not taking into account the possible consequences or treating them with indifference.
What are the types of intent?
Before defining the types of intent, it is necessary to note what it is. Intent is understood as the internal motivation of a citizen to commit one or another criminal attack .
All types of intent when committing attacks prohibited by criminal law can be divided into two blocks:
- Straight.
- Secondary (indirect).
Of course, not all crimes are committed intentionally. There are acts that are generated by society through negligence. These will be noted later.
Direct intent involves performing criminal acts with full knowledge of the possible negative consequences of this.
In this situation, the criminal wants these negative consequences to take place in society. In case of indirect intent, the same rules apply as stated above.
Secondary intent has a slightly different background. There is no direct desire to have a negative impact on society, but the criminal, in principle, admits that this is possible.
