ST 28 of the Criminal Code of the Russian Federation.
1. An act is considered committed innocently if the person who committed it did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction) or did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them.
2. An act is also considered committed innocently if the person who committed it, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload.
Commentary to Art. 28 Criminal Code
1. Innocent causing of harm means the absence of guilt in the actions of a person and, as a consequence, the absence of the subjective side as an element of the crime.
2. Part 1 contains a definition of a subjective case or incident associated with the absence on the part of the person of objective and subjective criteria of negligence or one of them. In other words, the case is that a person, due to the circumstances of the case, in crimes with a formal composition should not and (or) cannot be aware of the social danger of his actions (inaction), and in crimes with a material composition he should not and (or) cannot be aware the social danger of the actions (inactions) performed or to foresee the possibility of socially dangerous consequences.
3. Part 2 is essentially not related to guilt, but presupposes the absence of a crime due to the absence of a volitional sign in the person’s act: a person cannot avoid committing a crime due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload.
Liability for harm
When considering the concept of innocent causing of harm, it is worth highlighting an important circumstance: criminal liability for causing harm in accordance with the law does not arise if, during the consideration of the case, it is revealed that the actions of the person held accountable fall under the category of actions of innocent causing of harm.
The types of actions listed in Article 28 of the Criminal Code and falling under innocent causing of harm are exhaustive, however, in order to recognize such actions as innocent, it is necessary to carefully establish and prove the fact that the person could not understand the meaning of the action committed or could not foresee the occurrence of harmful consequences.
Also in practice, difficulties arise in proving the fact that a person is unable to prevent harmful consequences in extreme conditions or in the presence of an emotional disorder (overload). It is worth noting here that the concept of an extreme situation or extreme emotional disorder will be purely individual for each specific person in a particular situation at a certain point in time, since there are no general criteria suitable for a wide range of people in such a situation and objectively cannot exist.
Thus, the law excludes criminal liability in the event that the harm was caused innocently, but the very fact that the harm was caused innocently must be carefully proven and confirmed.
Second commentary to Art. 28 of the Criminal Code of the Russian Federation
1. In part 1 of Art. 28 of the Criminal Code of the Russian Federation enshrines this type of innocent causing of harm, which in the theory of criminal law is called a subjective case, or “incident”.
2. In relation to crimes with formal elements, this means that the person who committed a socially dangerous act did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction). This kind of “incident” is, for example, the sale of a counterfeit banknote by a person who did not realize and, due to the circumstances of the case, could not realize that the bill was counterfeit.
3. In relation to crimes with a material element, the subjective case is that the person who committed a socially dangerous act did not foresee the possibility of socially dangerous consequences occurring and, due to the circumstances of the case, should not or could not have foreseen them. This type of subjective case is distinguished from negligence by the absence of either both or at least one of its criteria.
4. In part 2 of Art. 28 of the Criminal Code of the Russian Federation establishes a new, previously unknown to the law and judicial practice, type of innocent infliction of harm. It is characterized by the fact that the person who committed a socially dangerous act, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload.
5. Firstly, the inability to prevent harmful consequences that are covered by the foresight of the actor excludes criminal liability if it is caused by a discrepancy between the psychophysiological qualities of the harm-doer and the requirements of extreme conditions, i.e. such unexpectedly arisen or changed situations for which a person is not prepared and, due to his psychophysiological qualities, is unable to make an adequate decision and find a way to prevent harmful consequences (for example, in an accident due to design defects or manufacturing defects of a machine or mechanism; in a situation of natural disaster or emergency situations; in the event of an emergency when performing work by divers, speleologists, while mountaineering, etc.).
6. Secondly, the act is considered innocent if the impossibility of preventing socially dangerous consequences is due to the discrepancy between the psychophysiological qualities of the harm-doer and his neuropsychic overload (fatigue, physical or mental stress as a result of hard physical work, long-term continuous intellectual work, for example, when working as a pilot aircraft or electric locomotive driver for the second shift in a row).
7. Establishing a discrepancy between the psychophysiological qualities of the operator, both the requirements of extreme conditions and neuropsychic overloads, should be the subject of a mandatory study of forensic psychological examination.
Article 28. Innocent causing of harm
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 14, 2019 N 5-APU19-10 to the competent authorities of the Republic of Kazakhstan for criminal prosecution under Part 3 of Art. , clause 2, part 4, art. 189 of the Criminal Code of the Republic of Kazakhstan were left without satisfaction, and the said decision of the Deputy Prosecutor General of the Russian Federation was recognized as legal and justified. Having heard the report of the judge of the Supreme Court of the Russian Federation E.B. Erdyniev, the speech of Ertaev Zh.Zh., lawyers Karpinsky R.S. and Petrova A.A. on the arguments of the appeal, speech by prosecutors Terekhova S.P., Klykovsky S.A., who objected to the arguments of the appeal, Judicial Collegium
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 28, 2019 N 4-APU19-6
As follows from the presented materials, the law enforcement agencies of Uzbekistan are prosecuting Rasuleva for committing crimes under paragraph “a” of Part 3 of Art. 168, part 1 art. , 211 and paragraph “b”, part 2 of Art. 168 of the Criminal Code of the Republic of Uzbekistan and is accused of having, through deception and abuse of trust, seized S.’s property and funds on an especially large scale in the period from August 30, 2016 to October 2, 2016 in the Almazar district of Tashkent, the Republic of Uzbekistan, and on October 12 2016, acting repeatedly, through deception and abuse of trust, took possession of the property of victim A. causing her material damage in a significant amount.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 18, 2018 N 127-UD18-16
By the verdict of the Simferopol District Court of the Autonomous Republic of Crimea dated December 9, 2013, Asanov was acquitted under Part 3 of Art. , part 3 art. 146 of the Criminal Code of Ukraine and for the totality of crimes provided for in Part 3 of Art. , clauses 6, 9, 12, 13, part 2, art. 115, part 1 art. , part 3 art. , paragraphs 3, 6, 9, 12, 13, part 2, art. 115, part 1 art. , part 3 art. 146, part 3 art. , part 3 art. , part 2 art. 146, part 3 art. , part 3 art. 146, part 3 art. 146, part 5 art. 185, part 1 art. , part 4 art. 187, part 4 art. 187, part 3 art. , part 4 art. 187, part 3 art. , part 1 art. , part 3 art. 190, part 4 art. 190, part 3 art. , part 4 art. 190, part 3 art. , part 2 art. , part 3 art. 357, part 3 art. , part 3 art. 357, part 3 art. , part 3 art. 357, part 3 art. , part 3 art. 358, part 3 art. , part 1 art. 358, part 3 art. , part 3 art. 358, part 3 art. , part 4 art. 358, part 3 art. , part 4 art. 358 of the Criminal Code of Ukraine, sentenced to life imprisonment with confiscation of property, on the basis of Part 2 of Art. The Criminal Code of Ukraine, together with the sentence of August 4, 2005, is to life imprisonment with confiscation of property.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 2, 2018 N 11-APU18-10
In addition No. 1 to his appeal, Savin N.V. challenges the conviction for preparing for sale a narcotic drug seized on November 15, 2013 during its inspection, provides testimony from expert G. claims that he did not know about the illegality of purchasing the smoking mixture and asks to evaluate his actions in accordance with Part 1 of Art. The Criminal Code of the Russian Federation as innocent causing of harm.
Determination of the Constitutional Court of the Russian Federation dated September 29, 2020 N 1982-O
The Criminal Procedure Code of the Russian Federation directly obliges the court, when rendering a verdict in the deliberation room, to resolve, in particular, the question of whether the defendant is guilty of committing a crime, to indicate in the descriptive and motivational part of the guilty verdict, among other things, the form of guilt, and in the operative part - a decision to find the defendant guilty of committing a crime (clause 4 of the first part of Article 299, clause 1 of Article 307 and clause 2 of the first part of Article 308). The above provisions do not contradict the provisions of the criminal law that disclose the content and forms of guilt (articles of the Criminal Code of the Russian Federation), do not contain any ambiguity and do not violate the rights of the applicant.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06/05/2019 N 51-APU19-8sp
- convicted Syretskikh N.A. expresses disagreement with the court's verdict, asks to change it, to mitigate the punishment imposed on him, applying the provisions of articles , , paragraphs “i”, “d”, “e” of part 1 and part 2 of article , articles , , of the Criminal Code of the Russian Federation. Indicates that he did not commit a crime, he was only an eyewitness to the incident. With Prohoda M.V. I practically didn’t know him, didn’t agree on anything with him, there was no goal to steal S.’s property. Prohoda M.V. put pressure on him, made death threats, and therefore he could not prevent this crime. He asks to take into account his mother’s advanced age and state of health. It is noteworthy that he actively contributed to the detection and investigation of the crime. He partially admits his guilt and repents that he could not prevent this crime. He asks to take into account his positive characteristics, the presence of three dependent minor children, his unsatisfactory state of health due to the loss of his spleen, as well as a number of other diseases that are documented and require significant medical examination;
Determination of the Constitutional Court of the Russian Federation dated October 29, 2020 N 2582-O
The Criminal Procedure Code of the Russian Federation, as one of the grounds for refusal to initiate a criminal case or termination of a criminal case, criminal prosecution, provides in paragraph 2 of the first part of Article 24 and paragraph 2 of the first part of Article 27 the fact of the absence of corpus delicti in the act. These provisions operate in conjunction with the norms of the criminal law (articles , , and - of the Criminal Code of the Russian Federation), establishing the principle of guilt and the basis of criminal liability, excluding the criminal liability of a person who could not realize the actual nature and social danger of his actions or control them due to a painful condition psyche, as well as revealing the content and forms of guilt, innocent causing of harm.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 26, 2017 N 9-N17-1
In accordance with Art. Under the Criminal Code of the RSFSR, execution was replaced by imprisonment for 8 years with strict isolation and with loss of rights for 5 years, with confiscation of property and in compliance with Art. Criminal Code of the RSFSR with credit for pre-trial detention of 9 months 28 days.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 11, 2021 N 81-UD21-2-A5
In the cassation appeal and addition to it, the convicted Borodin E.G. considers the court decisions to be unfair, indicates that the court's conclusions set out in the verdict do not correspond to the actual circumstances of the case. Believes that the court did not give a proper assessment to the contradictory testimony of the convicted Ozerov D.V. and Varnavskaya K.S. about the degree of their participation in causing the death of the victim, while stating that he (Borodin) himself inflicted only 3-4 blows to the victim with a slotted spoon, and did not strike B. with a knife. He indicates that the motive for his actions was the aggressive behavior of the victim, who was frightened by him and struck him, while he had no intent to kill B., he also does not know the reason why Ozerov D. began to strike B. with a knife and reinforcement. IN. and Varnavskaya K.S. He considers the sentence unfair, since the court did not fully take into account his active contribution to solving the crime. Expresses disagreement with the recognition of “committing a crime while intoxicated” as an aggravating circumstance. He believes that the verdict was based on inadmissible evidence. Declares his remorse for the actions he has admitted. He asks to change the court decisions, reduce the amount of the charge, excluding from the sentence the indication that he struck the victim with a knife and reducing the number of blows inflicted with a slotted spoon, as well as an indication of his intent to kill the victim, take into account the provisions of the article of the Criminal Code of the Russian Federation, apply the provisions of the article of the Criminal Code of the Russian Federation and mitigate the imposed punishment.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 30, 2021 N 49-UD21-49-A4
In the cassation appeal, the convicted Khabirova Yu.S. asks the verdict and the appeal ruling to be quashed due to violations committed in the case. She asks that her testimony dated November 19, 2019 and February 10, 2020 be declared inadmissible as evidence, pointing out that they were compiled by the investigator using leading questions. She claims that only her initial testimony in the case is true, without indicating which ones. Requests to apply the provisions provided for in Part 2 of Art. of the Criminal Code of the Russian Federation, since she acted innocently, could not prevent the consequences of her actions due to the inconsistency of her psychophysiological qualities with the requirements of extreme conditions and neuropsychic stress. Expresses disagreement with the conclusions of forensic psychiatrists about her sanity. Draws attention to the diseases she has, noted in the conclusions of these experts, in particular, encephalopathy, and other mental changes. She asks to take into account that she was in a state of strong mental agitation for a long time and attempted suicide due to the pressure put on her by T. (the father of the deceased boy). When imposing a punishment, the court illegally, in violation of the provisions provided for in Part 2 of Art. The Criminal Code of the Russian Federation took into account the commission of a crime against a minor by a parent as an aggravating circumstance, although her actions were qualified as the murder of a minor. He asks that the commission of a crime due to a confluence of difficult life circumstances be recognized as a mitigating circumstance, and that when determining the term of punishment, the provisions provided for in Art. Criminal Code of the Russian Federation.
Determination of the Constitutional Court of the Russian Federation dated December 14, 2021 N 2649-O
It must be taken into account, however, that the commission of acts (actions or inaction) by several different persons does not always lead to the occurrence of one socially dangerous consequence. At the same time, due to the requirements of Article 49 of the Constitution of the Russian Federation, part four of Article 7 and Article 14 of the Code of Criminal Procedure of the Russian Federation, articles , , , and the Criminal Code of the Russian Federation - the commission of a socially dangerous act in the form of a violation of safety rules, the presence of guilt, as well as cause-and-effect connections between the act and the consequences must be established in a reasoned court decision in relation to each subject brought to criminal liability. In addition, in criminal cases of violations of special rules, along with other evidence, accident investigation materials (an industrial accident report, etc.), the conclusion and other materials of an accident investigation conducted by state labor inspectors and other supervisory officials can be examined. authorities, and in necessary cases, to establish the causes of the accident and resolve other issues requiring special knowledge, a forensic examination is appointed (clause 13 of the same resolution of the Plenum).
Distinction from negligence
Crimes related to negligence and frivolity are classified under Article 26 of the Criminal Code of the Russian Federation and have elements in the actions of citizens similar to innocent harm. But the main distinguishing feature of two different articles of the Criminal Code is the fact that in cases with negligence established by the investigation, the citizen “understood, could and should have.”
Innocent harm, taking into account the prevailing circumstances, implies the opposite actions of citizens: “I did not realize, could not and should not have.”
Negligence is characterized by the frivolous calculation of a person committing criminal acts on the possible absence of dangerous situations.
Criminal frivolity or negligence committed in the actions of a citizen committed through negligence, which is not distinguished by the desire to intentionally cause harm, but actions that violate certain safety rules are, in most cases, done consciously with the hope that no tragic consequences will occur.
Persons who neglect safety rules do not foresee the possibility of dangerous consequences, but by deliberately violating certain norms of the law, they should have foreseen them. Based on Article 26 of the Criminal Code, for frivolous, careless actions, citizens who cause harm can be brought to criminal liability, since the actions they committed contain signs of a crime.
