Circumstances mitigating liability for a tax offense

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.

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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.

Minor age

A person who has not reached the age of full legal capacity and majority can count on receiving mitigation under certain circumstances.

A minor is easier to control and manipulate. He does not know all the current rules and laws, does not understand the real consequences of his actions.

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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.

Woman carrying a child

A pregnant woman, for a number of reasons, may not make rational decisions. This is due to hormones, character changes and increased impressionability. Another circumstance is the fact that a woman carrying a fetus will, on a subconscious level, protect it in all possible ways.

Situations often occur with pregnant women when the limits of necessary defense are exceeded. In exceptional situations, by court decision, a pregnant woman will be granted a deferment of punishment.

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.

First crime

Such a mitigating circumstance will be taken into account by the court only if all the conditions are met:

• The illegal act was committed for the first time. An illegal act was committed for the first time, if the accused did not have a criminal record, the existing sentence has no legal force, the statute of limitations has expired for the illegal acts committed, and the existing convictions have been completely expunged.
• The nature of the crime is minor or moderate.
• The crime was committed due to an unforeseen situation. The fact that a crime was committed accidentally due to force majeure circumstances is determined by the court in each case individually.

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.

Crime under duress

Mitigation of punishment is possible for the following types of coercion to commit an illegal act:

• Physical.
• Mental.
• In connection with material or service obligations.

To accept such facts, the defendant must prove in court the impossibility of resisting coercion and not committing a crime.

Illegal actions of the victim

If it is proven that the victim's actions were unlawful or immoral in relation to the suspect or other persons, such a circumstance will be accepted as a mitigating factor. Illegal actions or defiant behavior of the victim must be expressed in humiliation of the person, which has an impact on the person’s psyche.

Providing assistance to the victim

When the person who committed the illegal act made attempts to compensate for the damage caused, provide the necessary medical care, and prevent the development of serious consequences for the victim, such actions will have a mitigating nature.

Notes

1. ↑ 1 2 3 Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 356. - 448 p. — ISBN 978-5-93295-470-6.
2. ↑ Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 356-357. — 448 p. — ISBN 978-5-93295-470-6.
3. ↑ 1 2 3 Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 357. - 448 p. — ISBN 978-5-93295-470-6.
4. ↑ Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 358. - 448 p. — ISBN 978-5-93295-470-6.
5. ↑ 1 2 Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 359. - 448 p. — ISBN 978-5-93295-470-6.
6. ↑ 1 2 Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 360. - 448 p. — ISBN 978-5-93295-470-6.
7. ↑ 1 2 Dodonov V.N.
   Comparative criminal law. General part / under general ed. S.P. Shcherby. - M.: Yurlitinform, 2009. - P. 361. - 448 p. — .

Factors characterizing the personality of the accused

Being a minor is always accepted by the court as a mitigating circumstance. Judicial practice shows that most teenagers commit offenses under the influence of adults. Children strive to look more mature and imitate someone whose authority they recognize.

The teenage psyche is easier to correct, so the types of punishment used are less severe. Criminal law provides for this type of liability as educational measures.

Such measures include:

1. Warning.
2. Obligation to compensate for damage caused.
3. Referral to special institutions.
4. Limitation of leisure activities.

Pregnancy is one of the mitigating factors that are taken into account by Article 61 of the Criminal Code of the Russian Federation. The physical state of expecting a child gives a woman increased irritability and temper. However, if the criminal act is caused by personality traits not related to pregnancy, then the woman should not expect relief in the sentencing.

The presence of children under the age of 14 years of the accused is necessarily examined during the consideration of the case. The real participation of a citizen in the upbringing and maintenance of children characterizes him positively. Committing a crime against your child, on the contrary, is an aggravating factor. Those deprived of parental rights also cannot count on court leniency.

Circumstances mitigating criminal liability due to a combination of random conditions must be interconnected:

• the maximum punishment for the episode does not exceed two years of isolation from society (actions of minor gravity);
• the unlawful act is not an expression of the normal behavior of the accused, i.e. a combination of external conditions pushed the person to certain actions;
• the crime is considered to have been committed for the first time.

Separately, each of these factors cannot be taken into account to facilitate punishment.

According to criminal law, persons who have committed a criminal act for the first time include:

1. No previous convictions.
2. Persons whose criminal prosecution for previous episodes has expired.
3. Amnestied.
4. Citizens with a criminal record expunged on general grounds.

The mere fact of a first violation of the law does not alleviate the responsibility of the accused.

The Criminal Code does not disclose the content of the concept of “motive of compassion”. In practice, the motive of compassion can help reduce the amount of punishment imposed.

The court of the city of Orekhovo-Zuevo, Moscow Region, was considering a case on charges of B. committing a crime under Part 1 of Article 105 of the Criminal Code of the Russian Federation. Wife B. suffered from cancer for a long time and experienced severe pain. After repeated requests from his wife, seeing her suffering, B. strangled her out of pity. After that, he came to the police station to give a statement. Witnesses and the district police officer confirmed the words of the accused when testifying under Article 76 of the Code of Criminal Procedure of the Russian Federation. Having considered the circumstances of the case, the judge sentenced B. to 4 (four) years of suspended imprisonment.

In order for the court to recognize the motive of compassion, a combination of the following conditions is necessary:

• incurable disease of the victim;
• physical suffering of the patient;
• the victim’s persistent desire to die;
• compassion of the accused;
• The purpose of the crime is to end the patient’s suffering.

The combination of external unfavorable factors that led a person to the path of crime alleviates guilt only if the crime was caused by these factors.

Difficult life situations include:

1. Illness of the perpetrator or members of his family.
2. Unfavorable living conditions.
3. Problems of a financial nature (if they are not caused by alcohol or drug addiction).
4. Regular conflicts in the family.
5. Conditions that caused a stressful situation (dismissal, death of a loved one, divorce).

These circumstances are considered mitigating because they indicate the randomness of the unseemly act and the absence of base motives.