Commentary to Art. 7 of the Criminal Code
1. The principle of humanism, on the one hand, presupposes the protection of man as the highest value, the protection of his rights, freedoms, honor and dignity, the interests of society from criminal attacks, and national security in general.
2. The second side of humanism relates to the perpetrator, to the imposition of punishment or other measures of a criminal legal nature, which cannot be aimed at causing physical suffering or humiliation of human dignity.
3. The principle in question is manifested both in the rules of law and in the process of imposing punishment. Thus, the Criminal Code provides for the obligation of the court to take into account the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family (Part 3 of Article 60 of the Criminal Code), the possibility of conditionally condemning the perpetrator (Article 73 of the Criminal Code), and releasing him from criminal liability (Article 75 - 78 of the Criminal Code), exemption from serving a sentence (Articles 79 - 85 of the Criminal Code), etc.
Principle of legality
Article 3 of the Criminal Code of the Russian Federation
- The criminality of an act, as well as its punishability and other criminal legal consequences, are determined only by this Code.
- Application of criminal law by analogy is not allowed.
The main provision of the principle of legality: there is no crime and no punishment without indication in the law (NULLum crimen, NULLum poena sine lege), i.e.:
1) only the Criminal Code of the Russian Federation determines which acts are considered criminal;
2) the punishability of an act is determined by the Criminal Code of the Russian Federation (the code provides an exhaustive list of types of punishment with a precise indication of the conditions and limits of its application).
From a formal point of view, the essence of the principle of legality is to ensure that the signs of a crime are recorded in the federal law (Criminal Code of the Russian Federation), to prevent the establishment of criminality and punishability of an act - and therefore restrictions on constitutional rights - in regulatory legal acts of the executive branch.
Second commentary to Art. 7 of the Criminal Code of the Russian Federation
1. The humanism of criminal law must first of all be manifested in ensuring, by criminal legal means, the inviolability of the person and property from criminal attacks. For these purposes, the Special Part of Criminal Law contains rules on specific types of crimes, according to which the perpetrators are subject to punishment. Any fair punishment will be humane. At the same time, humanism is also addressed to persons found guilty of committing a crime. In particular, the law prohibits the use of torture and other actions that specifically cause physical suffering or degrade human dignity.
2. Humanism has found its substantive embodiment in a special chapter - Ch. 14 of the Criminal Code, dedicated to the criminal liability of minors.
Principle of guilt
Article 5 of the Criminal Code of the Russian Federation
- A person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences for which his guilt has been established.
- Objective imputation, that is, criminal liability for innocent causing of harm, is not allowed.
The presence of guilt is a general and generally accepted principle of legal liability in all branches of law.
The principle of guilt in criminal law is that no one can bear criminal liability unless his personal guilt in relation to a socially dangerous act and the resulting consequences has been established.
- Only individuals are subject to criminal liability, and among them only those who have consciousness and will.
- Responsibility is possible only if there is a person’s mental attitude to the committed act and its consequences expressed in the form of intent or negligence - subjective imputation.
- The principle of guilt predetermines the personal nature of responsibility under the Criminal Code of the Russian Federation - personalization of responsibility excludes the concept of a collective subject of a crime.
The principle of guilt prohibits objective imputation - the onset of criminal liability for innocent causing of harm.
Third commentary to Article 7 of the Criminal Code of the Russian Federation
1. Humanism is a universal, highly moral idea, which is based on the recognition of the individual as the highest social value of society, the deepest respect for his dignity, the desire of the state to fully protect his rights, freedoms and interests, and create conditions for ensuring the security of man and citizen. Guided by this noble humanistic idea, the Constitution of the Russian Federation solemnly proclaims: “Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state” (Article 2). This guiding idea, elevated to the rank of a constitutional provision, naturally permeates all branches of Russian law, including criminal law, in which it received the legislative form of one of its main principles.
2. Humanism as a principle of the Criminal Code of the Russian Federation has two aspects, two sides of its objective manifestation and purpose. The first aspect consists in the full protection of the rights and freedoms of man and citizen, in ensuring his safety, and, consequently, protecting the interests of the entire society from criminal attacks, if we are talking about humanism as a principle of criminal law. This main manifestation of the principle of humanism is clearly stated in Part 1 of Art. 7 of the Criminal Code, and it, as is easy to see, is closely connected with the implementation of the tasks of criminal legislation (see commentary to Article 2 of the Criminal Code). Moreover, the more fully the tasks of the Criminal Code are implemented in the process of law enforcement activities of the relevant state bodies, the more the principle of humanism is realized, the more stable the state of internal security of the entire Russian society and its individual members becomes. Due to the noted dialectical relationship between the principle of humanism and the implementation of the tasks of criminal legislation, it can and should be said that the general humanization of the spheres of criminal legal regulation and criminal legal protection does not at all reduce the possibility of achieving the goals that the legislator sets for this branch of law. Rather, on the contrary - the expansion and strengthening of the elements of a humanistic orientation in the very content of criminal law, the reasonable humanization of the scope of application of its norms on the basis of legality, taking into account the priority in this process of the interests of the individual and society, will undoubtedly only enhance the effectiveness of the protection of these objects.
3. The second side of the principle of humanism is addressed to the person who committed the crime, who is also a person and in whose resocialization society and the state are vitally interested. Correcting the criminal, preventing him from committing new crimes are the main goals of punishment; moreover, this is one of the tasks of the Criminal Code of the Russian Federation. The cruelty of punishment, excessive severity (rigidity) of punishment not justified by the stated goals, not to mention the infliction of physical suffering on the criminal or humiliation of his human dignity, as the centuries-old experience of mankind shows, are not capable of achieving the goals of criminal law, and often lead to the opposite results, since they grossly violate the principles of legality and justice when imposing coercive measures of state legal influence on a citizen, and sharply contradict public legal consciousness. That is why the law (Part 2 of Article 7 of the Criminal Code) formulates a provision according to which punishment and other measures of a criminal legal nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation of human dignity.
4. In the criminal law, the principle of humanism is not simply declared, although this in itself is extremely important in the conditions of the formation of a truly legal state in Russia. In the content of the current criminal legislation, this principle has received the form of real existence in many of its norms and institutions, in the practice of their application. In particular, taking into account humanistic principles, the legislator in Art. 44 of the Criminal Code, a system of punishments has been designed in which they are all arranged in order from milder to more severe. Such a construction of the system directs the court to select for the guilty person the minimum specific measure sufficient to achieve the goals of his punishment. The sanctions in the Articles of the Special Part of the Criminal Code are based on a similar principle and, of course, taking into account the same guidelines. The humanistic idea of applying a minimum sufficient measure of influence to a criminal received its most clear expression in Art. 60 of the Criminal Code, which formulates the general principles (rules) of sentencing, which contains an imperative order for the court: “A more severe type of punishment from among those provided for the crime committed is assigned only if a less severe type of punishment cannot ensure the achievement of the goals of punishment.” At the same time, the law, based on this guiding idea, instructs the court, when imposing a punishment, to take into account its impact “on the correction of the convicted person and on the living conditions of his family” (see commentary to Article 60 of the Criminal Code). It is easy to discover that many circumstances mitigating punishment and listed in Art. 61 of the Criminal Code, such as minority, pregnancy, the presence of young children of the perpetrator and a number of others, bear the stamp of humanism towards the offender. A similar idea lies in the significant limitation of the use of the death penalty, where the personal characteristics of the criminal (age, gender) are the determining basis for the prohibition of its use (Article 59 of the Criminal Code). To a large extent, the principle of humanism in connection with the tasks of the Criminal Code and the goals of punishment serves as a justification for the presence in the system of criminal legislation of such large institutions as the features of criminal liability and punishment of minors, regulated by a set of privileged legal norms (Chapter 14, Art. 87 - 96) , exemption from criminal liability (Chapter 11, Art. 75 - 78), exemption from punishment (Chapter 12, Art. 79 - 83), amnesty (Art. 84), pardon (Art. 85 of the Criminal Code) . All this indicates a further significant humanization of the sphere of criminal legal regulation and protection, which at the same time strengthens the principles of legality and justice in solving the problems facing criminal law. However, a truly humane attitude towards persons who have committed crimes has nothing in common with forgiveness, manifestations of clearly unfounded liberalism, undeserved leniency towards dangerous professional criminals, towards organizers, leaders and members of organized criminal groups and criminal communities. In relation to this category of criminals, the criminal law must be used to its fullest extent, and its force must be used to the fullest extent possible. Humanism and forgiveness are incompatible categories.
5. Along with the basic principles directly enshrined in Art.
Art. 3 - 6 of the Criminal Code and those commented above, criminal legislation is also characterized by other, more specific principles, for example, economy of normative material, economy of repression, differentiation of responsibility, individualization of punishment. There is reason to assert that, despite their importance, they are nevertheless of an auxiliary nature, and their functional role is that, figuratively speaking, they serve the basic principles of law and contribute to their fullest implementation. For example, the principle of differentiation of responsibility allows the principles of legality to be more fully revealed; the principle of individualization of punishment is directly related to the implementation of the principle of justice in the process of assigning it, etc. We can, therefore, say that these particular special principles are included in the unified system of principles of Russian criminal law. ‹ Article 6. Principle of justiceUp Article 8. Basis of criminal liability ›
Aspects of Humanism
First of all, you need to understand that the word aspect itself implies from which side this or that object is viewed.
Aspects of humanism are divided into:
- theoretical;
- practical.
The theoretical aspect of humanism is based on the philosophical ideas of different eras and peoples.
In theoretical reflections, a person is presented as uniting material and spiritual principles into a single whole. The goal of humanists that they strive for is to unite a beautiful body with a divine pure soul. Thus, they tried to create ideal people, with spiritual humanity.
Let's consider the practical side of humanism.
There are three main directions in the practical side of humanism, that is, application in practice. These include:
- upbringing and education in the spirit of human development;
- state activities;
- the influence of art and creativity on the awakening of humanity.
In criminal law, it is humanism that is the criterion for the limits of influence on subjects by certain methods.
The main provision of the criminal legal principle of humanism is the natural need for the totality of moral and ethical requirements of society, which are expressed in legal forms that ensure the rights and freedoms of citizens when implementing criminal legislation.
The aspect of the principle of humanism is characterized by the fact that the criminal legal protection of freedom and rights of people is carried out according to international standards, enshrined specifically in international legal documentation and the Constitution of the Russian Federation.
In addition, restoration of the personal rights and freedom of the victim violated as a result of criminal actions; Encouraging citizens to voluntarily fulfill duties for the legal protection of public order is another aspect of the principle of humanism.
Also in criminal law, the aspect of humanism suggests that any punishment for an offense committed is limited to the minimum that is sufficient to correct and prevent the commission of new crimes.
The principle of humanism is implemented in lawmaking and application of law.
