What are aggravating circumstances in the Criminal Code of the Russian Federation and how do they affect punishment

New edition of Art. 63 of the Criminal Code of the Russian Federation

1. The following are recognized as aggravating circumstances:

a) relapse of crimes;

b) the onset of grave consequences as a result of the commission of a crime;

c) committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization);

d) a particularly active role in the commission of a crime;

e) involvement in the commission of a crime of persons who suffer from severe mental disorders or are in a state of intoxication, as well as persons who have not reached the age at which criminal liability begins;

f) committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group;

f.1) committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission;

g) commission of a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty;

h) committing a crime against a woman who is known to be pregnant by the perpetrator, as well as against a minor, another defenseless or helpless person or a person dependent on the perpetrator;

i) committing a crime with particular cruelty, sadism, mockery, and torture for the victim;

j) committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, narcotic drugs, psychotropic, potent, poisonous and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion;

k) committing a crime during a state of emergency, natural or other public disaster, as well as during mass riots, in conditions of armed conflict or military action;

l) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract;

m) committing a crime using the uniform or documents of a government representative;

o) commission of a deliberate crime by an employee of an internal affairs body;

o) commission of a crime against a minor (minor) by a parent or other person who is charged by law with the responsibility for raising the minor (minor), as well as by a teacher or other employee of an educational organization, medical organization, organization providing social services, or other organization, obligated to supervise the minor (minor);

p) committing a crime for the purpose of promoting, justifying and supporting terrorism.

1.1. The judge (court) imposing punishment, depending on the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator, may recognize as an aggravating circumstance the commission of a crime while intoxicated caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances.

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

What are aggravating circumstances

As mentioned above, these are certain factors in which the need to impose a more severe punishment is recognized due to the gravity of the crime committed.

Why does the court always take them into account? The fact is that they vividly characterize the personality of the criminal, his motives and sometimes the reasons why he decided to commit a crime.

Aggravating circumstances of criminal punishment are divided into two types:

• specific to a particular offense;
• general and applicable to everyone.

The presence of aggravating circumstances implies a tougher punishment.

The former are included in the qualifying elements of the crime, and the latter are listed in Article 63 of the Criminal Code of the Russian Federation. These include:

• repeat offense (when the offender has previously committed a similar crime under the conditions that his criminal record has not yet been expunged, or it has not been expunged, according to Article 18 of the Criminal Code of the Russian Federation);
• as a result of what happened, grave consequences occurred for the victim or other persons (they are determined by the judge, but usually they include the death of a person, his suicide, damage to health, etc. At the same time, the intentionality of their infliction is not the determining condition in this situation , but only the threat of their application is not a circumstance aggravating criminal liability);
• group commission of an offense ( a group of persons means a number of people - from 2 );
• the criminal played a major role in the crime ( usually the perpetrator or organizer );
• inducing mentally ill or intoxicated people to commit an offense, as well as those who have not reached the age of 18 (this indicates that the person is trying to avoid responsibility for his act. There is one important nuance here: if the crime itself was carried out a teenager or a mentally ill person, that is, those who cannot be held responsible for their actions, then either do not answer for the violation at all or in a partial form, while a citizen under alcohol cannot count on the same);
• hatred or enmity based on racial, religious and other prejudices;
• if it was carried out out of revenge or to cover up tracks;
• the crime was committed because the victim carried out certain types of activities ( individual entrepreneur, testifying in court, etc. This can also include various types of atrocities against the victim’s relatives);
• the citizen committed an offense against a pregnant woman, a child or any other person who could not resist him (in psychology it is determined that any mentally healthy person cannot harm someone who is not able to respond to him. If the individual allowed himself to cross this trait, then this indicates his strong moral degradation);
• the crime was committed with particular cruelty or torture for the victim (this includes both moral and physical damage);
• it took place with the use of explosives, chemicals or narcotic substances;
• the atrocity occurred during an emergency (these include riots, armed actions, terrorist attacks, epidemics, etc. );
• the offender took advantage of the fact that the victim trusted him due to his official position or other factors;
• he used documents or a form that only law enforcement officers have (this also involves discrediting government officials);
• the crime was carried out by a person working in the internal organs department;
• executed in relation to a teenager by a person who was obliged to bear responsibility for him (guardians, parents, teachers, etc.);
• the crime is in one way or another connected with terrorist activities.

In 2013, Federal Law No. 270 , which states that being under the influence of alcohol now refers to circumstances that aggravate the guilt of the offender, taking into account whether the court considers this necessary.

Only those circumstances listed in Article 63 of the Criminal Code of the Russian Federation are considered aggravating.

The fact that the accused citizen himself does not admit his guilt does not apply to the above list.

Let’s say that when considering a case in court, the jury admitted the defendant’s guilt, but determined the possibility of applying a reduced type of punishment to him. Will punishment be imposed under aggravating circumstances? No, in this case they will not be taken into account.

It is also very important to know that if, according to the Special Part of the Criminal Code of the Russian Federation, the list of aggravating circumstances is a sign of the crime itself, then for the second time, under Article 63 of the Criminal Code of the Russian Federation, it will not be taken into account.

It should also be borne in mind that the above list is exhaustive, that is, any factor not included in it cannot be an aggravating factor.

Article 63 of the Criminal Code of the Russian Federation. Aggravating circumstances (current version)

1. The following are recognized as aggravating circumstances:

a) relapse of crimes;

b) the onset of grave consequences as a result of the commission of a crime;

c) committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization);

d) a particularly active role in the commission of a crime;

e) involvement in the commission of a crime of persons who suffer from severe mental disorders or are in a state of intoxication, as well as persons who have not reached the age at which criminal liability begins;

f) committing a crime based on political, ideological, racial, national or religious hatred or enmity, or based on hatred or enmity against any social group;

f.1) committing a crime out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission;

g) commission of a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty;

h) committing a crime against a woman who is known to be pregnant by the perpetrator, as well as against a minor, another defenseless or helpless person or a person dependent on the perpetrator;

i) committing a crime with particular cruelty, sadism, mockery, and torture for the victim;

j) committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, narcotic drugs, psychotropic, potent, poisonous and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion;

k) committing a crime during a state of emergency, natural or other public disaster, as well as during mass riots, in conditions of armed conflict or military action;

l) committing a crime using the trust placed in the perpetrator by virtue of his official position or contract;

m) committing a crime using the uniform or documents of a government representative;

o) commission of a deliberate crime by an employee of an internal affairs body;

o) commission of a crime against a minor (minor) by a parent or other person who is charged by law with the responsibility for raising the minor (minor), as well as by a teacher or other employee of an educational organization, medical organization, organization providing social services, or other organization, obligated to supervise the minor (minor);

p) committing a crime for the purpose of promoting, justifying and supporting terrorism.

1.1. The judge (court) imposing punishment, depending on the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator, may recognize as an aggravating circumstance the commission of a crime while intoxicated caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances.

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

How much does the punishment change in the presence of aggravating circumstances?

In each individual case, the degree of aggravating consequences of the crime is considered differently, since there are no absolutely identical crimes.

For example, when considering a crime committed by an organized group, the degree and extent of participation of each offender who took part in the crime is taken into account. The actions of the performer and organizer are punished more severely, and their accomplices less severely.

If it is established that the group was created by prior conspiracy, then it is already determined that the crime was committed by a criminal community.

When reoffending, the court takes into account factors such as the nature of the previous crime, the reasons for the insufficient impact of the punishment for it and the severity of the crime committed. At the same time, the existence of a connection between the past and present cases and how much time has passed between the first and second are also considered.

You can read about what rights a person has when detained.

For such a crime, ⅓ of the maximum period provided for it is assigned, but within the limits of the relevant article of the Special Part of the Criminal Code of the Russian Federation. If at the time of its commission there were mitigating circumstances, then less than ⅓ .

Aggravating circumstances are applied if certain conditions are met under the Criminal Code of the Russian Federation.

Let's say the criminal did not have time to finish his crime. In this case, the minimum amount of punishment is derived from the upper limit, which is specified in Article 66 of the Criminal Code of the Russian Federation.

If by the time the second crime is committed, the offender’s criminal record for the previous crime has already expired, then this will no longer be considered an aggravating circumstance.

If an intentional crime entailed serious consequences for the victim, then the court, when assigning punishment, takes into account their degree and measure. The amount of punishment in this case consists of two components:

• the minimum term for the crime itself;
• and he is also for committing a crime using extreme cruelty.

There are cases when an atrocity took place with a whole complex of various aggravating circumstances accompanying it. In this case, according to Article 63 of the Criminal Code of the Russian Federation, the size of the preventive measure consists of those periods that are assigned for each of them. If there were more than three of them, then the total period must be no less than the sum of all periods intended for them under the legislation of the Russian Federation.

All aggravating circumstances must be taken into account by the court when pronouncing the final sentence on the criminal, even if they were not taken into account when drawing up the indictment.

Is it possible to prove the absence of aggravating circumstances to reduce the punishment?

This can be done first of all if you have a good lawyer who can help the offender in court.

If the matter concerns relapse, then it is important to take into account this nuance: despite the fact that having a criminal record is the second important component of recidivism, these are not unambiguous concepts. This means that a criminal record in itself cannot be an aggravating circumstance , so here you can argue with the court if it decides otherwise.

Also, according to the decision of the Plenum of the Supreme Court of the Russian Federation, in order to recognize the fact of recidivism, it is required that the citizen have an unexpired conviction for an intentional crime.

How to file a police report? You can read about it here.

Let's say a person has committed a serious crime, but he has a criminal record for a crime of minor gravity. Will this be considered a relapse? No, but if it was intentional, then yes.

When considering cases in which it is indicated that the offender played a particularly active role in committing a crime against other persons, it is necessary to specify exactly how he did this. This could be the involvement of other persons in a crime, leadership, etc. In the absence of such clarifications, the lawyer can achieve the removal of this fact from the case.

It is always important to compare what the judge or prosecutor is trying to present with what is stated directly in the legislative act itself.

It is necessary to carefully compare what the court considers as an aggravating circumstance and what is specified in the Criminal Code of the Russian Federation.

For example, when considering a similar circumstance as the use of a law enforcement officer’s uniform, the court may consider any similar uniform to be it. However, Part 1 of Article 63 of the Criminal Code of the Russian Federation contains quite precise wording in this regard, so there is an opportunity to challenge the court’s decision.

It is also possible to challenge such a factor as inducing mentally ill persons to commit a crime. It is important to remember the definition of “mental disorder”. It is interpreted as a congenital or acquired mental disorder, regardless of the presence of legal capacity. That is, you need to immediately consult a psychiatrist if they try to apply this circumstance in court.

Particular attention is paid to such a grave consequence as committing a crime in revenge for the legal actions of third parties. Here, too, it is important to follow exactly the interpretation contained in Article 63 of the Criminal Code of the Russian Federation. The reason for the crime must be precisely the desire of the criminal to take revenge for the previously completely lawful actions of the person against whom he committed the malicious act.

The fact that a citizen committed an offense against a pregnant woman or a person who could not fight back can also be disputed. It applies only if the accused actually knew about the woman's condition or that the individual was unable to resist it.

You should also hire a good lawyer if you know that the court will try to charge you with aggravating circumstances.

In each individual case, as can be deduced from all of the above, you need to follow exactly the letter of the law. The court may consider this or that circumstance accompanying the crime differently; it cannot deviate from the normative legal acts on which it is obliged to act.

Not the least important role for the court is played by the personality of the criminal himself , and this, like nothing else, is characterized by aggravating circumstances. For example, committing a crime with particular cruelty may indicate that the criminal takes pleasure in the torture he commits on the victim, which in turn means for the court that such a person is a social danger.

Commentary on Article 63 of the Criminal Code of the Russian Federation

1. The list of aggravating circumstances (Article 63) performs only one obligatory function: the court must identify all the circumstances present in a particular case from those named in the list and, having recorded them in the verdict, take them into account when assigning punishment. Aggravating circumstances are set out in thirteen paragraphs of the commentary. articles.

2. Recidivism of crimes (clause “a”) increases the punishment, because in the presence of a criminal record, the social danger of both the act and the personality of the perpetrator noticeably increases, his criminal skills and confidence in achieving the goal are strengthened.

2.1. Recidivism involves the commission by a person who has reached the age of 18 of at least two intentional criminal acts (not classified as minor), each of which has not lost its legal significance. If for a previously committed crime the previous conviction has been expunged or removed, or the person has not actually served a sentence for this crime, there is no relapse (Part 4 of Article 18) and paragraph “a” of Part 1 of Art. 63 not applicable.

2.2. In contrast to the previously effective Criminal Code of the Russian Federation of the RSFSR, comment. The article does not provide the court with the right not to recognize the value of an aggravating circumstance for a recidivism (while a number of the Criminal Codes of the Russian Federation of other countries - Uzbekistan, Kyrgyzstan, Latvia, Ukraine - provide the court with such a right).

3. The onset of grave consequences as a result of committing a crime (clause “b”). The severity of the consequences is one of the most important indicators of the degree of public danger of a criminal attack: the more tangible the violation of the object of criminal legal protection, the more dangerous it is, the sharper the reaction of society and the state to such an attack. Since severity is an evaluative sign, the question of classifying specific consequences of an act as grave is decided by the court, taking into account all the circumstances of the case in their totality. In this case, the harm not only directly caused by the crime, but also remote, additional harm is taken into account. In the event of theft, this may result in a suspension of production or disruption of the sowing schedule, or a delay in the payment of earnings to a significant number of people; in case of slander or torture - in the suicide of the victim; in case of murder - in depriving a large family of a breadwinner, etc.

3.1. The indispensable conditions for imputing objectively grave consequences to a criminal are, firstly, the presence of a causal connection between the act of criminal behavior of the perpetrator and such consequences; secondly, the presence of a guilty attitude towards the latter, at least in the form of negligence.

In this case, there may be a discrepancy between the person’s subjective attitude towards the main result of the crime and the grave consequences. This can be observed when parents become seriously ill as a result of the abduction of their child, when a large family is deprived of a breadwinner as a result of murder, when a slandered person commits suicide, etc.

3.2. According to the meaning of the law, the aggravating circumstance provided for in paragraph “b” is present only in the case when serious consequences have actually occurred; just the threat of their occurrence is not enough.

4. Committing a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) (clause “c”). In the total mass of criminal attacks, group crimes account for about 30%, which is evidence of the prevalence of this form of criminal activity. At the same time, the likelihood of causing harm or causing greater harm increases sharply. This determines the increased danger of group forms of criminal activity.

4.1. Unlike the Criminal Code of the Russian Federation of the RSFSR, which recognized the commission of a crime only by an organized group as an aggravating circumstance (clause 2 of Article 39), the current Criminal Code of the Russian Federation names all types of groups. This takes into account the position of practice, which has consistently and previously attached aggravating significance to the commission of a crime by any group, and not just an organized one, because the level of danger of the act is actually higher when it is committed by a group of persons of any kind (for their concept, see Article 35).

4.2. As the size of the group increases (three or more) and with the addition of accomplices (accomplices, instigators and organizers), its danger increases. Qualitative changes arise in cases where a preliminary agreement on a crime is reached between persons. The court encounters a new quality, a higher organization of the attribute in cases where a crime is committed by an organized (stable) group, and even more so by a criminal organization, i.e. a close-knit group created to commit grave or especially grave crimes.

5. Particularly active role in the commission of a crime (clause “d”). In accordance with Part 1 of Art. 67 when assigning punishment for a crime committed in complicity (as well as by a group of persons), the court takes into account the nature and extent of the person’s actual participation in its commission, the significance of this participation in achieving the goal of the crime, its impact on the nature and extent of the harm caused or possible harm. A particularly active role in the commission of a crime characterizes the degree of a person’s participation in the crime: he has the initiative, he acts as an inspirer and most persistently strives to achieve a criminal result. Previously, practice took this circumstance into account within the framework of the sign named in paragraph “c”; now the figure of the initiator and the person showing the greatest activity during the encroachment is especially highlighted.

6. Involvement in the commission of a crime of persons who suffer from severe mental disorders or are in a state of intoxication, as well as persons who have not reached the age at which criminal liability begins (clause “d”). This aggravating circumstance presupposes the influence of the perpetrator on one of the following categories of persons: a) those suffering from severe mental disorders - we are talking about both the insane and those who are “limitedly” sane (Articles 21, 22). The severity of mental illness is determined by psychiatric experts; b) were in a state of intoxication. It is established by a narcologist or (if a certain time has passed since the crime was committed and the state of intoxication has passed) - by witness testimony. The legislator does not attach any importance to the degree of intoxication; c) those who have not reached the age of registration (see Art. 20).

6.1. The common thing that unites these three categories of persons is their increased suggestibility: they are more easily persuaded, they are easier to persuade to illegal behavior, while the culprit has the opportunity to remain, as it were, in the shadows and avoid criminal justice by using these persons as a cover, and often and as instruments of assault. Involvement of the mentioned persons in the commission of a crime is also conceivable at the stages of preparation and attempt, not only as a co-perpetrator, but also as an accomplice.

6.2. In cases where a minor is involved in a crime, it is possible for the perpetrator to be punished under Art. 150 (subject to the presence of all signs of “involvement” in the commission of a crime). When determining punishment under this article, reference to paragraph “d” is unacceptable, however, it is legal when assigning punishment for the crime (socially dangerous act) in which the person involved participated.

7. Committing a crime motivated by national, racial, religious hatred or enmity, out of revenge for the lawful actions of other persons, as well as in order to hide another crime or facilitate its commission (clause “e”). This paragraph names three aggravating circumstances that characterize the base motives and goals of the criminal’s behavior.

7.1. According to Art. 20 of the International Covenant on Civil and Political Rights, “all advocacy of national, racial or religious hatred, which constitutes incitement to discrimination, hostility or violence, shall be prohibited by law.” The same idea is carried out in Part 2 of Art. 29 of the Constitution, according to which propaganda that incites racial, national or religious hatred and enmity is prohibited in the Russian Federation. When committing criminal acts that demonstrate racial and other hatred and enmity, the perpetrator is guided by motives based on an extremely negative assessment of a particular nation, race, religion and their bearers (representatives).

7.2. Committing a crime motivated by revenge presupposes: a) lawful (law-abiding) behavior of other persons, b) causing harm to victims precisely on this basis, motivated by revenge for lawful behavior. The type of harm in this case can be very diverse - humiliation of honor and dignity, violation of sexual integrity, destruction and damage to property, harm to health, etc. The victim of such an attack can be not only a citizen who has carried out lawful actions (for example, filing a lawsuit to protect his honor and dignity or for the division of property), but also another person, through an attack on which the perpetrator takes revenge for the lawful behavior of another person. In the latter case, as a rule, the victim is a person who is not indifferent to the citizen who carried out lawful actions.

7.3. The goal of concealing another crime or facilitating its commission is pursued by the intention of the subject of the attack: a) to make the event of the crime unknown to the authorities, the participation of the perpetrator in the latter, b) to remove obstacles that, in the opinion of the criminal, make it difficult to carry out the intended criminal act. It is therefore assumed that there are two crimes, one of which is aimed at facilitating the other. An attack aimed at concealing or facilitating a planned crime is conceivable at the stages of preparation, attempt, and implementation of the latter. The subject of the attack is usually the perpetrator of the crime, but it is possible to conceal the perpetrator’s crime or facilitate its commission by another person (for example, an accomplice).

8. Committing a crime against a person or his relatives in connection with the performance of official activities by this person or the performance of a public duty (clause “g”). Essentially, we are talking about a type of aggravating circumstance such as committing a crime out of revenge for the lawful actions of other persons. The analyzed circumstance presupposes that the victim (or a person close to the victim) carries out: a) official activity or b) a public duty, in connection with which the perpetrator encroaches on these persons.

8.1. Close persons can be not only relatives, but also other persons whose rights and legitimate interests - due to established personal relationships - are not indifferent, dear to a citizen (Clause 3 of Article 5 of the Code of Criminal Procedure) who has fulfilled his official or public duty. Official activity is understood as the lawful behavior of a civil servant (not just an official), carried out within the limits of authority, as well as a person performing managerial functions in a commercial or other organization. The fulfillment of public duty should be understood not only as carrying out the functions of a representative of a particular public organization, public formation, but also other socially useful actions in the interests of other individuals, society or the state (suppression of offenses, reporting a crime committed or being prepared, etc.) .

8.2. In a number of compositions, the circumstance in question acts as a qualifying circumstance (see Articles 105, 111, 112, etc.) or as a sign of the main composition (Articles 277, 295, 318, etc.). In this case, by virtue of Part 2 of the comment. article, it should not be taken into account again when assigning punishment as an aggravating circumstance.

9. Committing a crime against a woman who is known to be pregnant by the perpetrator, as well as against a minor, another defenseless or helpless person, or a person dependent on the perpetrator (clause “h”). This paragraph names several aggravating circumstances that superficially resemble the mitigating circumstances set out in paragraph “b” (minority), paragraph “c” (pregnancy) and paragraph “e” (physical and mental coercion, material, work or other dependence ) Part 1 Art. 61, but as if “on the contrary”: we are talking about a certain state not of the perpetrator, but of the victim. The general thing that unites the comments mentioned in paragraph “h”, part 1. Articles of circumstance - limited (or completely absent) possibilities of the victim to counteract the encroachment of the perpetrator, which is realized by the latter and used by him when committing a crime.

9.1. These circumstances have a lot in common with those mentioned in paragraph “d”, part 1 comment. articles that also characterize the limited ability of persons (with mental disorders, minors, etc.) to resist the negative activity of the perpetrator. However, if paragraph “e” refers to the involvement of the mentioned persons in the commission of a crime, then the analyzed paragraph “h” refers to the commission of a criminal attack against them.

9.2. On the concept of pregnancy, young age, addiction, see comment. to clauses “c”, “d”, “e” part 1 of Art. 61 and paragraph “e”, part 1, art. 63. By “other” defenseless or helpless person, in addition to pregnant women and minors, one should understand elderly people, as well as those endowed with physical disabilities and mental disorders that sharply limit the person’s ability to resist assault.

9.3. Circumstances of the same name are mentioned in separate articles of the Special Part of the Criminal Code of the Russian Federation as elements of a crime (see, for example, Articles 105, 111, 131). In this case, they are not subject to be taken into account when assigning punishment as aggravating factors (Part 2 of Article 63).

10. Committing a crime with particular cruelty, sadism, mockery, as well as torture for the victim (clause “and”). In all the mentioned cases, the victim is inflicted clearly unnecessary suffering that is not due to the essence of the crime that is committed by the perpetrator, the main purpose of the act. As a result, additional harm is caused to the victim that is not dictated by the main goal: either some other important objects of criminal legal protection are affected (honor, dignity, etc.), or the harm caused to the main object of the attack increases.

10.1. Particular cruelty is expressed in the use of torture <1>, torture, and ultimately causing special suffering to the victim or close persons present at the scene of the crime. The essence of sadism is the desire for cruelty, in enjoying the suffering of others, when cruelty becomes an end in itself. Bullying is behavior aimed at humiliating the honor and dignity of an individual; it is expressed in mockery and infliction of moral suffering on the victim. Torment is an act that causes suffering by prolonged deprivation of food, drink or warmth, or by placing (or leaving) the victim in conditions harmful to health, or other similar acts. ——————————— <1> Torture is understood as the infliction of physical or moral suffering in order to compel actions contrary to the will of a person, as well as for the purpose of punishment, etc. (see note to Article 117).

10.2. The circumstances mentioned in paragraph “i” are found in cases of crimes, the main or additional objects of which are the life, health, honor and dignity of the individual. If they are provided for by the relevant article of the Special Part as a sign of a crime - main or qualifying (Articles 105, 111, 117, etc.), then they are not subject to be taken into account as aggravating factors when imposing punishment under the same article.

11. Committing a crime with the use of weapons, ammunition, explosives, explosive or simulating devices, specially manufactured technical means, toxic and radioactive substances, medicinal and other chemical and pharmacological preparations, as well as with the use of physical or mental coercion (clause “ To"). This paragraph deals with generally dangerous and other means of assault that can significantly facilitate the commission of a crime and lead to causing greater harm to objects of criminal legal protection. It is not enough for a criminal to possess the mentioned means; it is necessary to establish their actual use in the process of assault, “putting them into use.”

11.1. The concept of weapons and ammunition is contained in the Weapons Law. Weapons are devices and objects that are structurally designed to hit a living or other target or send signals. Munitions are weapons and projectile equipment designed to hit a target and containing explosive, propelling, pyrotechnic or expelling charges, or a combination thereof. Explosives are understood as chemical compounds or mechanical mixtures of substances capable of rapid self-propagating chemical transformation - explosion (TNT, ammonites, elastites, etc.). Explosive devices consist of an explosive substance and a special device designed to produce an explosion.

11.2. Technical means mean objects (tools, lifts, rope ladders, etc.) that facilitate the commission of a crime. A prerequisite is that these funds were specially manufactured for the crime. Manufacturing means the creation or restoration of technical properties lost by an object, as well as the reworking of any objects, as a result of which they acquire the qualities of technical means.

11.3. Substances of synthetic and natural origin are toxic, including those excluded from the State Register of Medicines, listed in List 2 of the Standing Committee on Drug Control (monkshood, amizil, purified bee venom, etc.). Radioactive substances are substances that emit ionizing radiation and are not classified as nuclear materials. The list (types) of medicinal and other chemical and pharmacological preparations is determined by the Ministry of Health and Social Development of Russia.

11.4. The use of physical or mental coercion involves the unlawful use of physical influence or threats in the process of committing a crime. In cases where it entails on the grounds of Art. 40 or 39 exception of the Coerced Person, the perpetrator of the crime is the person who applied physical or mental coercion.

12. Committing a crime in a state of emergency, natural or other public disaster, as well as during mass riots (clause “l”). A state of emergency and public disaster are components of the concept of an emergency situation. Under it, according to Art. 1 Federal Law of December 21, 1994 N 68-FZ “On the protection of the population and territories from natural and man-made emergencies” <1> means the situation in a certain territory resulting from an accident, dangerous natural phenomenon, catastrophe, natural or other disaster, which may result or have resulted in human casualties, damage to human health or the environment, significant material losses and disruption of people’s living conditions. In the event of a threat or emergency, citizens are obliged to follow the established rules of conduct and, if necessary, provide assistance in carrying out urgent work (Article 19 of this Law). ——————————— <1> NW RF. 1994. N 35. Art. 3648.

12.1. Mass riots are violations of public order and public safety by a large mass of people (crowds), expressed in pogroms, arson, violence, etc. and entailing the emergence of a situation uncontrollable by the authorities within a certain period of time. Just as in an emergency situation, the social organism turns out to be weakened and any new harm caused to it is especially painful and acute. As a result, the harm caused by the criminal actions of the perpetrator and outwardly equal to the usual one, in reality seems to be “tenfolded” and increases significantly. In addition, in such a situation, the commission of a crime itself becomes noticeably easier, because the attention of the authorities and the population is diverted to solving other problems. From the subjective side, it is assumed that the perpetrator is aware of all these circumstances and uses them.

13. Committing a crime using the trust placed in the perpetrator by virtue of his official position or contract (clause “m”). Trust is understood as a belief in someone’s integrity, sincerity, honesty, decency and an attitude towards someone based on this. Trust is based on factual or legal circumstances (facts). But it is precisely legal, and only, circumstances that are meant in this paragraph, since we are talking about trust arising from the official position of the perpetrator or from the contract.

13.1. A contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations (Article 420 of the Civil Code). Official status applies to any employees, including commercial and other organizations (see Chapter 23), for example, private notaries, auditors, employees of private security and detective services.

13.2. The use of the resulting relationship of trust means that the victim’s conviction in the integrity and honesty of the perpetrator is used for evil, to harm, in order to facilitate the commission of a crime. As a result, the organization that is a party to the contract is discredited, the authority of a government body, commercial organization, etc., whose employees were persons who used the powers granted to them to commit a crime, is undermined.

13.3. The aggravating circumstance in question occurs most often in crimes of an economic nature (Chapters 21, 22), although it can also accompany individual attacks on the person, such as kidnapping, unlawful imprisonment, violation of copyright and related rights.

14. Committing a crime using uniforms or documents of a government representative (clause “n”). This aggravating circumstance was first introduced into the list of Art. 63 due to the fact that this method of encroachment has become relatively widespread, especially in the form of the use of police uniforms and documents. In this case, the calculation is made on trust and subordination to government officials, which makes it easier to commit a crime. The danger of this method is that it inevitably affects an additional object - the authority of state power.

14.1. A representative of the government is recognized as an official of a law enforcement or regulatory body, as well as another official vested with administrative powers in accordance with the procedure established by law in relation to persons who are not officially dependent on him (note to Article 318). The uniform of a government representative is clothing that is required to be worn by a given person while performing official duties or in the process of carrying out professional activities. Documents of a government representative are understood as official documents (certificates) issued by government bodies to government representatives. An aggravating circumstance provided for in paragraph “n”, part 1 comment. article, it is also evident if the document or form turned out to be counterfeit (for example, the guilty party filled out an identity form purchased by him from private individuals).

15. The list of aggravating circumstances is exhaustive and is not subject to broad interpretation (see paragraph 1, paragraph 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 11, 2007 N 2). Therefore, taking into account other data in the case when choosing a punishment is possible only within the framework of the main criteria for imposing punishment - the nature and degree of social danger of the crime and the personality of the perpetrator - as other (in addition to aggravating) circumstances that influence the degree of danger of the crime and characterize the personality of the perpetrator. Currently not mentioned in the list of Art. 63 such a circumstance as a person committing a crime while intoxicated, by virtue of Part 3 of Art. 60, if there are grounds for it, may be taken into account when assessing data characterizing a person.

16. On the inadmissibility of double counting of an aggravating circumstance provided as an element of a crime, see paragraph 8 of the commentary. to Art. 60.