Article 63 of the Criminal Code of the Russian Federation with Commentary 2022: latest changes and amendments, judicial practice

ST 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.

Commentary to Art. 63 Criminal Code

1. In the presence of one or more circumstances provided for in Part 1 of Art. 63 of the Criminal Code, the court is obliged to increase the punishment of the perpetrator within the limits of the sanction. However, the law itself does not provide for a mechanism for the influence of one or another mitigating circumstance on the imposed punishment.

2. The list of aggravating circumstances is exhaustive and is not subject to broad interpretation, and their establishment is essential for the correct solution to the issue of individualization of punishment.

3. The commission of a crime by a person while intoxicated caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances, on the one hand, may be recognized by the court as an aggravating circumstance, and on the other hand, acts as a constructive, qualifying or specially qualifying sign of a crime under Art. 264 or 264.1 of the Criminal Code.

When resolving the issue of the possibility of recognizing the specified state of a person at the time of commission of a crime as an aggravating circumstance, the court must take into account the nature and degree of public danger of the crime, the circumstances of its commission, the influence of the state of intoxication on the behavior of the person when committing the crime, as well as the identity of the perpetrator (clause 31 of the Resolution Plenum of the Supreme Court of the Russian Federation of December 22, 2015 N 58).

Article 63. Circumstances aggravating punishment

[Criminal Code] [General Part] [Section III] [Chapter 10]
. The following are considered 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.

. 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.

Second commentary to Art. 63 of the Criminal Code of the Russian Federation

1. Provided for in Art. 63 of the Criminal Code, the list of circumstances aggravating punishment is exhaustive and is not subject to broad interpretation. Aggravating circumstances must be indicated in the sentence in the same way as they are provided for in the criminal law (clause 28 of the PPVS 2015).

2. In accordance with Part 11 of Art. 63 of the Criminal Code, the mere commission of a crime in a state of intoxication caused by the use of alcohol, narcotic drugs, psychotropic substances or their analogues, new potentially dangerous psychoactive substances or other intoxicating substances is not a basis for recognizing such a state as an aggravating circumstance. The descriptive and motivational part of the sentence must indicate the reasons why the court came to the conclusion that it was necessary to recognize the specified condition of the person at the time of the commission of the crime as an aggravating circumstance.

When committing crimes under Part. 2, 4, 6 tbsp. 264 and art. 264.1 of the Criminal Code, the state of intoxication is established in accordance with Note 2 to Art. 264 CC. In other cases, the person’s condition can be confirmed both by medical documents and by the testimony of the defendant, victim or other evidence (clause 31 of the 2015 PPVS).

3. Based on the provisions of Part 2 of Art. 63 of the Criminal Code, circumstances related to the elements of a crime provided for in the relevant article of the Special Part of the Criminal Code must be taken into account when the court assesses the nature of the public danger of the crime. However, these same circumstances cannot be taken into account again when assigning punishment (clause 32 of the 2015 PPVS).

4. Within the meaning of Art. 63 of the Criminal Code, aggravating circumstances are taken into account when assigning punishment for a crime with any form of guilt, unless otherwise is directly provided by law (for example, clause “o”, part 1 of article 63 of the Criminal Code) or does not follow from it (for example, from clause “n” part 1 of article 63 of the Criminal Code) (clause 32 of the PPVS 2015).

Article 63 of the RF IC. Rights and responsibilities of parents regarding the upbringing and education of children

The article contains the most important provisions for raising a child and turning him into a full-fledged member of society. Previously, the Code contained only the responsibilities of parents to raise their children. The change in attitude towards the family and its role in the child’s life made the truth obvious: parents are not only obliged to raise him, but also have the right to do so.

Raising a child is a personal and integral matter for each parent. This right can be lost only in cases provided for by law: upon deprivation of parental rights and adoption of a child. The right presupposes the opportunity to personally raise one’s children. At the same time, parents are free to choose ways and methods of education. The State shall, within its capabilities, take the necessary measures to assist parents and other persons raising children in the exercise of this right and, if necessary, provide material assistance and support programs, especially with regard to the provision of food, clothing and housing.

The right of parents is ensured not only through state assistance, but mainly through the fulfillment of parental responsibilities for their upbringing. These responsibilities include caring for the health, physical, mental and moral development of the child. These, in the most general terms, are the most important duties of parents.

The role of parents in fulfilling responsibilities is becoming more and more obvious. It is on this that the child’s spiritual world, his readiness to communicate, his desire for knowledge, and his ability to control his mind and feelings largely depend.

Parents are responsible for the upbringing and development of their children. This responsibility must be shared and binding on both parents. The special importance of parents' responsibility in ensuring the rights and interests of their children is emphasized.

At the same time, there is an impact on the formation of a sense of responsibility for the child and his upbringing, the completeness of which largely determines the quality of family upbringing. When transferring a child to be raised by other persons in accordance with the procedure established by law, parents are responsible for the upbringing and development of the child together with the person replacing them. When adopting, the adoptive parent assumes full responsibility for the child. Temporary transfer by parents of their children to relatives, strangers, or to one of the child care institutions does not relieve parents of responsibility for their upbringing and development.

The Family Code does not specify what kind of responsibility we are talking about. It is assumed that there is responsibility both of a moral nature and as provided for in various branches of legislation, even criminal. In the first case, responsibility entails moral condemnation, in the second - additional burden or even punishment in accordance with the procedure established by law, consequences unfavorable for the violator of rights that go beyond the scope of forced performance of duties.

Not only parents, but also other family members often take part in raising a child, but the primary right to raise a child belongs to the parents. This means that when the court resolves disputes between parents and other persons regarding the upbringing of a child, other things being equal, these disputes are resolved in favor of the parents. The same can be said regarding disagreements on issues of family education resolved by the guardianship and trusteeship authorities.

Education is a purposeful process of education and training in the interests of the individual, society, and state. And although the RF CK talks about only one aspect of education - training, it still refers to the most important prerequisites for the full, comprehensive development of a child’s personality. These prerequisites are created not only by the state, but also by parents. In everyday life, the fulfillment of this responsibility by parents is to ensure that their child learns, he must receive the necessary education. He can combine his studies with work, creative, entrepreneurial, and commercial activities. This kind of obligation also applies to persons acting as substitute parents in accordance with the procedure established by law. Avoidance of this obligation serves as grounds for deprivation of parental rights, removal of the guardian (trustee), and termination of the agreement on the transfer of the child to a foster family.

Parents are obliged to ensure that their child receives a general basic education and to choose an educational institution and forms of education for the child. The State must respect the freedom of parents and, where appropriate, legal guardians to choose for their children not only schools established by the State authorities, but also other schools that meet such minimum requirements as may be established or approved by the State.

The choice of educational institution and form of education for a child to receive basic general education are also enshrined in the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education”. This means that only parents have the right to decide where their child will receive an education (in a public or private school, lyceum, gymnasium, college, etc.). It depends on the choice of the parents whether the child should study in an educational institution; in the form of family education, self-education, external studies. A combination of different forms of education is allowed.

It is only necessary that the form of education they choose corresponds to the unified state educational standard. Moreover, parents raising and educating a minor child in the family are paid additional funds in the amount of the cost of education for each child. It also depends on parents what kind of additional education and where their children will receive - in vocational guidance centers, music and art schools, art schools, children's art centers, at young technicians' stations, young naturalists' stations and in other institutions that have the appropriate licenses. Parents exercise their right to choose taking into account the child’s opinion. It doesn’t matter how old he is. For younger children, his abilities and inclinations may matter. Older children act consciously and realistically, basing their choices on their future professional orientation.

The choice by a parent and his child of the type of educational institution and form of education is influenced by the state of the child’s health, the degree of financial security of the family, family traditions, the profession of the parents, etc. In any case, taking into account the child’s opinion means treating him with respect. However, parents have the right not to take into account the point of view of a minor if it contradicts his interests or cannot be realized for objective reasons.