Article 61 of the Criminal Code of the Russian Federation. Circumstances mitigating punishment

Criminal Code of the Russian Federation in the latest edition:

Article 61 of the Criminal Code of the Russian Federation. Circumstances mitigating punishment

1. The following are recognized as mitigating circumstances:

a) committing a crime of minor or medium gravity for the first time due to a random combination of circumstances;

b) the minority of the perpetrator;

c) pregnancy;

d) the presence of young children with the perpetrator;

e) committing a crime due to a combination of difficult life circumstances or out of compassion;

f) committing a crime as a result of physical or mental coercion or due to financial, official or other dependence;

g) commission of a crime in violation of the conditions of legality of necessary defense, detention of the person who committed the crime, extreme necessity, justified risk, execution of an order or instruction;

h) illegality or immorality of the behavior of the victim, which was the reason for the crime;

i) confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime;

j) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property damage and moral harm caused as a result of the crime, and other actions aimed at making amends for the harm caused to the victim.

2. When assigning a punishment, circumstances not provided for in part one of this article may be taken into account as mitigating circumstances.

3. If a mitigating circumstance is provided for by the relevant article of the Special Part of this Code as an element of a crime, it in itself cannot be taken into account again when assigning punishment.

Return to the table of contents of the document: Criminal Code of the Russian Federation in the latest edition

Comments on Article 61 of the Criminal Code of the Russian Federation

In the presence of one or more circumstances provided for in Part 1 of Art. 61 of the Criminal Code of the Russian Federation, the court is obliged to mitigate the punishment of the perpetrator within the limits of the sanction.

Mitigating circumstances cannot influence the establishment of signs of a crime or the crime itself, but can significantly affect the assignment of punishment.

The legal significance of mitigating circumstances lies in the fact that they reduce the degree of public danger of the crime committed, as well as the identity of the perpetrator, and influence not only the court’s choice of a specific punishment, but are also taken into account when deciding on release from criminal liability, the application of a suspended sentence, etc. d. The nature of mitigating circumstances, as well as the presence of several circumstances, may give the court grounds to consider them as exceptional and impose a more lenient punishment than provided by law (Article 64 of the Criminal Code of the Russian Federation).

The list given in Article 61 of the Criminal Code of the Russian Federation is approximate and not exhaustive . The court has the right to recognize any other circumstance as mitigating at its discretion, citing the reasons for such a decision in the verdict.

Certain acts are no longer considered a crime.

Decriminalization affected such acts as:

A transaction with precious metals and (or) stones made in violation of established rules (Part 1 of Article 223 of the Criminal Code),
Violation of the procedure for opening accounts outside the Republic of Belarus (Article 224 of the Criminal Code),
Illegal use or disclosure of information entered in the register of securities owners, or information about the results of the financial and economic activities of the issuer of securities before its publication in the media or otherwise brought to the attention of an unlimited number of persons, committed by a person who knows such information or information in connection with his professional or official activities, and causing damage on a large scale (Part 1 of Article 226-1 of the Criminal Code),
Obstruction of legitimate business activity (Article 232 of the Criminal Code),
Carrying out business activities prohibited in accordance with legislative acts or without state registration (Part 1 of Article 233 of the Criminal Code),
False entrepreneurship (Article 234 of the Criminal Code),
Violation of antimonopoly legislation (Article 244 of the Criminal Code),
Discrediting the business reputation of a competitor (Article 249 of the Criminal Code),
Intentional disclosure of commercial or banking secrets without the consent of its owner in the absence of signs of crimes under Art. 226-1 and 254 of the Criminal Code, by a person who knows such commercial or banking secret in connection with his professional or official activities, resulting in damage on a large scale (Part 1 of Article 255 of the Criminal Code).

Persons convicted under the above articles of the Criminal Code are exempt from punishment (primary and additional), as well as the application of other measures of criminal liability (Article 6 of Law No. 171-Z).

The court's assessment of circumstances as mitigating

the prerogative of the court to assess this or that circumstance as mitigating . This means that lists of circumstances mitigating or aggravating punishment are not automatically taken into account by the court and reflected in the verdict, but must be established at the court hearing and recognized as such in court and only after examining all the evidence in the aggregate at the court hearing. Failure to recognize a circumstance as mitigating punishment must be motivated in the descriptive and motivational part of the sentence.

The list of mitigating circumstances given in Art. 61 of the Criminal Code of the Russian Federation

1) commission of a crime of minor or medium gravity for the first time due to a random combination of circumstances . To take this circumstance into account as a mitigating factor, all three factors must be present:

committing a crime of minor or medium gravity. The concept of crimes of minor or medium gravity is determined based on the provisions of Art. 15 of the Criminal Code of the Russian Federation;
committing a crime for the first time. A person who has committed one or more crimes, for none of which he was previously convicted, or when the previous sentence against him has not entered into legal force or convictions for previously committed crimes have been expunged and expunged, should be considered to have committed a crime of minor or medium gravity for the first time. in accordance with the procedure established by law (clause 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 01.02.2011 N 1). This category includes, among other things, persons who have previously committed crimes, but in relation to them the statute of limitations for criminal prosecution has expired (Article 78 of the Criminal Code of the Russian Federation), the statute of limitations for the execution of a conviction has expired (Article 83 of the Criminal Code of the Russian Federation), if their criminal record has been expunged as a result of acts of amnesty (Article 84 of the Criminal Code of the Russian Federation), pardon (Article 85 of the Criminal Code of the Russian Federation), if the criminal record is cleared or canceled on a general basis (Article 86 of the Criminal Code of the Russian Federation).
the presence of a random coincidence factor. A random coincidence of circumstances should be considered objectively formed personal or family circumstances, although of a short-term nature, but which had a strong emotional impact on the perpetrator. The presence of a random combination of circumstances is established in each specific case. This is a matter of fact. It can be expressed, for example, in a situation such as the commission of a crime under the influence of an adult.

2) the minority of the perpetrator is a circumstance mitigating the punishment. The juvenile age of the culprit is characterized by instability in behavior, impulsiveness, excess energy, and inability to use it in the right direction.

Minors are persons who were fourteen years old at the time of committing a crime, but not eighteen years old (Article 87 of the Criminal Code of the Russian Federation). For the commission of the vast majority of crimes listed in the Criminal Code of the Russian Federation, criminal liability begins at a minor age. Minority under the provisions of Ch. 14 of the Criminal Code of the Russian Federation is taken into account as a feature when assigning punishment, and therefore the term and amount of punishment must be determined in accordance with Art. 88 of the Criminal Code of the Russian Federation, which does not prevent minorities from being taken into account as a mitigating circumstance. The minority of the perpetrator must be recognized as a mitigating circumstance, even if by the time the case is considered in court the perpetrator has reached the age of majority.

3) pregnancy is recognized as a circumstance mitigating the punishment of the guilty party, primarily based on the principle of humanism, which is dictated by concern for the health of the child and the woman herself.

Pregnancy leaves a serious imprint on the behavior of the culprit, her state of health and psyche, and is accompanied by increased sensitivity, hot temper, irritability, etc. Neither the duration of pregnancy nor the range of crimes in the commission of which it acts as a mitigating circumstance are limited; The law also does not require a direct connection between the state of pregnancy and the commission of a crime.

4) the presence of young children with the perpetrator . A minor is a minor who has not reached the age of 14 (Article 28 of the Civil Code of the Russian Federation). The presence of young children of the perpetrator is considered as a circumstance mitigating punishment, which requires research and appropriate assessment. For example, the presence of young children of a convicted person in judicial practice is not regarded as a mitigating circumstance if the convicted person committed a crime against his own child, as well as in relation to an adopted or dependent child of the convicted person or a child under his guardianship, or deprived of parental rights, and also if he did not take any part in the upbringing and maintenance of the child.

The presence of a young child of the perpetrator of malicious evasion of payment of funds for the maintenance of this child, as determined by the court, should not be recognized as a mitigating circumstance, as well as in cases where the perpetrator does not live with the family for a long time and does not provide assistance to them, and is cruel to children. etc.

5) committing a crime due to a combination of difficult life circumstances or out of compassion involves a difficult financial situation due to lack of work or insufficient income to support the family, illness of a family member or loved one, difficult housing or family conditions, etc. A combination of difficult life circumstances or a motive of compassion are considered mitigating circumstances only if the crime committed is closely related to them. Such conditions may be recognized, for example, the lack of funds for living in the event of loss of work - in case of theft of someone else's property; serious illness of the culprit or his relatives - during theft of narcotic drugs.

The motive of compassion, i.e. pity, sympathy caused by someone’s misfortune, grief, can occur, for example, when giving, at the request of a seriously ill person, a large dose of medicine, from which the perpetrator knows the death of the patient will occur, committing theft in favor of other persons who do not have the means to live, and so on.

6) the commission of a crime as a result of physical or mental coercion or due to material, official or other dependence can be considered a circumstance mitigating punishment only if the court recognizes such dependence or coercion as having actually taken place, and the actions of the coerced person themselves are forced , since his will is, as a rule, suppressed, but such suppression does not completely deprive the person of the ability to resist coercion. Otherwise, we should talk about innocent causing of harm, about the absence of a crime in the actions of the guilty party.

Physical or mental coercion of a person to commit a crime is mitigating provided that the coercion suppressed the person’s will and limited his freedom of behavior. Coercion can be physical (beating, imprisonment, causing harm to health, etc.) or mental (a real threat to harm health, property, interests, etc.). In this case, we are talking about surmountable coercion, since if coercion is recognized as insurmountable, liability is excluded.

Financial is considered to be the dependence of the perpetrator on the person with whom he is dependent, lives in his living space, receives funds to provide for himself and his loved ones, the dependence of the debtor on the creditor, etc.

Service dependence is based on the subordination of one person to another for work in enterprises and organizations of any form of ownership.

Another dependence may arise on the basis of marital, family, and family and work relationships.

Criminal liability, and therefore punishment, cannot occur if the influence in the form of coercion puts the person committing illegal actions in conditions of extreme necessity. For example, a bank teller transferring funds to attackers who threatened to use weapons or take their lives.

7) commission of a crime in violation of the conditions of legality of necessary defense, detention of a person who committed a crime, extreme necessity, justified risk, execution of an order or instruction . If a person commits a crime in violation of the conditions of legality of actions specified in Art. Art. 37 - 42 of the Criminal Code of the Russian Federation, criminal liability arises, but these circumstances are recognized as mitigating punishment.

The specified circumstances can be considered mitigating if they are not part of the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, such as, for example, murder committed when the limits of necessary defense were exceeded or when the measures necessary to detain the person who committed the crime were exceeded (Article 108 of the Criminal Code of the Russian Federation) ; causing serious or moderate harm to health when exceeding the limits of necessary defense (Article 114 of the Criminal Code of the Russian Federation), etc. If these circumstances are included in the disposition of the criminal law norm, they cannot again be taken into account as circumstances mitigating the punishment. Therefore, in the latter capacity, the circumstances under consideration can only act when they are not provided for by the article of the Special Part of the Criminal Code of the Russian Federation.

illegality or immorality of the behavior of the victim, which was the reason for the crime . The concept of wrongfulness is not limited to the commission of a crime. It also includes other actions prohibited by other branches of law, for example administrative, labor, and civil law. Thus, illegal behavior can be expressed in beatings, bullying (mockery), serious insults, humiliation of human dignity, and can also consist of abuse of official position, blackmail and other actions, i.e. actions that are not violence, bullying, or serious insult, but are illegal in nature.

Establishing the immorality of the victim’s behavior requires its assessment from the position of moral, moral and ethical rules generally accepted in society, ideas about such categories as justice, honor, good and evil, etc.

9) confession, active assistance in solving and investigating a crime, exposing and prosecuting other accomplices in a crime, searching for property obtained as a result of a crime.

Confession is a voluntary statement by the perpetrator about the crime committed. A mitigating circumstance will be any surrender, regardless of the time that has elapsed since the commission of the crime, its nature, as well as the motives for such behavior.

Actively contributing to the detection and investigation of a crime is expressed in the fact that the perpetrator provides the inquiry or investigative authorities with information previously unknown to them (indicates the location of the instruments of the crime, helps in organizing and conducting investigative experiments, accounting examinations, presents physical evidence, etc. .).

Actively facilitating the exposure and prosecution of other accomplices in a crime, the search for property obtained as a result of a crime, are forms of active behavior of the perpetrator in solving a crime, expressed, for example, in indicating the persons involved in the commission of crimes, reporting their data, location, reporting data confirming the participation of accomplices in the commission of the crime, indicating the place where the stolen property was hidden, the persons who acquired the stolen property, etc.

To recognize these circumstances as mitigating punishment, it remains important that these actions be performed voluntarily, and not under the pressure of available evidence.

10) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property damage and moral harm caused as a result of the crime, other actions aimed at making amends for the harm caused to the victim.

Providing medical care can be expressed, for example, in such actions as taking measures to stop the victim’s bleeding, making and applying a splint for a fracture, calling an ambulance, taking him to the hospital, etc.

Compensation for property damage may consist of compensation in the form of payment of funds, compensation for damage with similar destroyed items, other items satisfying the victim, etc.

Compensation for moral damage consists of providing moral satisfaction to the victim, such as an apology, a request for forgiveness, or compensation for moral damage in material terms. A combination of these types of compensation is also possible.

Other actions aimed at making amends for the harm can be very diverse and largely depend on the nature of the harm caused, for example, the perpetrator himself repairs the premises that were damaged, refuting false fabrications in case of slander, reinstatement at work in case of violation of the equality of rights and freedoms of man and citizen and etc.

These circumstances indicate the repentance of the perpetrator for his crime and can be considered as circumstances mitigating punishment.

Confiscation of property is excluded.

Confiscation of property is excluded from the list of additional punishments.
For reference
.
Previously, confiscation of property could be applied to persons who committed economic crimes such as:

Production, storage or sale of counterfeit money or securities (Article 221 of the Criminal Code);
Production or sale of counterfeit means of payment (Article 222 of the Criminal Code);
Violation of the rules on transactions with precious metals and (or) stones (Article 223 of the Criminal Code);
Illegal actions with promissory notes and (or) bills of exchange (Article 226-2 of the Criminal Code);
Smuggling (Article 228 of the Criminal Code);
Illegal export or transfer for the purpose of export of objects of export control (Article 229 of the Criminal Code);
Non-return of historical and cultural values to the territory of the Republic of Belarus (Article 230 of the Criminal Code);
Illegal business activity (Article 233 of the Criminal Code);
False entrepreneurship (Article 234 of the Criminal Code);
Legalization (“laundering”) of funds obtained by criminal means (Article 235 of the Criminal Code);
Establishment or maintenance of monopoly prices (Article 245 of the Criminal Code).

At the same time, for persons who have committed crimes against the procedure for carrying out economic activities, confiscation is replaced by a fine.

According to Part 2 of Art. 50 of the Criminal Code, the fine is set in the amount of 300 to 5,000 basic units.

In addition, along with criminal liability, special confiscation may be applied to such persons.

The definition of special confiscation is enshrined in Art. 46-1 of the Criminal Code is a forced gratuitous seizure of state property:

property obtained by criminal means or acquired with funds obtained by criminal means;
income received from the use of this property, as well as objects of the crime, if they are not subject to return to the victim or other person;
instruments and means of committing a crime belonging to the person who committed the crime;
things withdrawn from circulation.

This is the main difference between special confiscation and confiscation (previously Article 61 of the Criminal Code) - the latter implied the gratuitous seizure of all or part of the property that is the property of the convicted person

In addition, special confiscation does not refer to types of punishment - unlike confiscation, it is a measure of a criminal law nature (Decision of the Constitutional Court of the Republic of Belarus dated 06.06.2017 No. R-1086/2017 “On the legal regulation of special confiscation”).

Important.

In this part, Law No. 171-Z has retroactive effect. That is, a sentence regarding the confiscation of property, executed as of July 19, 2019, in whole or in part, is not subject to execution and revision (Part 2, Clause 2, Article 6 of Law No. 171-Z), and the confiscated property is not returned to the convicted person. The bailiff is obliged to terminate enforcement proceedings for this type of punishment, not executed in whole or in part.

At the same time, a fine, which in the articles of the Special Part of the Criminal Code replaces the confiscation of property, is not applied to the person, because a fine as a type of punishment can only be applied by a court verdict. The sentence by which a person is sentenced to confiscation of property does not contain such an indication.

Provisions of Art. 46-1 of the Criminal Code on special confiscation applies to relations that arose before its entry into force by Law No. 171-Z.

The list of mitigating circumstances not specified in Article 61 of the Criminal Code of the Russian Federation

The list of mitigating circumstances is not exhaustive , and when imposing a punishment, other circumstances not specified in Part 1 of Art. 61 of the Criminal Code of the Russian Federation. In paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 2015 N 58 “On the practice of imposing criminal punishment by the courts of the Russian Federation,” the following is stated, in particular:

As a circumstance mitigating punishment, the court has the right to recognize:

admission of guilt, including partial;
repentance for what he has done;
the presence of minor children, provided that the perpetrator takes part in their upbringing, financial support and the crime has not been committed against them;
the presence of elderly people dependent on the perpetrator;
the health status of the perpetrator;
the perpetrator has a disability;
the perpetrator has state and departmental awards;
participation of the perpetrator in military operations to defend the Fatherland, etc.

As judicial practice shows, most often, as mitigating circumstances, courts take into account: the positive characteristics of the personality of the perpetrator at the place of work, study or residence, his attitude to work, study and society, the state of health of the perpetrator.