In the presence of exceptional circumstances - Lawyer avmanam1

If there are exceptional circumstances

Features of sentencing below the lower limit provided for in Art. 64 of the Criminal Code of the Russian Federation. In criminal legislation, the theory of criminal law and judicial practice of the Russian Federation, there has been a certain tendency towards the identification of “special” mitigating, aggravating and other circumstances, both those appearing and those not included in the legislative lists. The difference between “special” circumstances and ordinary ones (Articles 61 and 63 of the Criminal Code), within the meaning of the law, is that the former can change the limits within which the punishment is imposed. Mitigating and aggravating circumstances enable the court to individualize a particular punishment within the limits of the article of the Special Part of the Criminal Code defined by law. Thus, “special” mitigating circumstances include: 1) characterizing the post-criminal behavior of the perpetrator, his efforts to make amends for the harm caused to the victim by the crime committed (Article 62 of the Criminal Code);

2) exceptional - related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, and others that significantly reduce the degree of public danger of the crime, as well as with the active assistance of a participant in a group crime in solving this crime (Article 64 of the Criminal Code) ;

3) conditioning the jury’s verdict on leniency or special leniency (Article 65 of the Criminal Code);

4) an unfinished crime (Article 66 of the Criminal Code).

Of significant interest for judicial practice are exceptional circumstances in which it becomes possible to impose a more lenient punishment than provided for a given crime.

At different stages of development, Russian criminal legislation ambiguously determined the procedure for imposing punishment below the lower limit of the article providing for liability for a criminal offense. For example, after coordination of the Code with the Judicial Statutes as amended in 1866 and 1885, under Art. 135 of the Code, the court was given the right not only to reduce the measure within a degree, but to lower the punishment by one or two degrees, and for press crimes even by several degrees, or even move to the highest degree of the nearest lower type of punishment.

In the decision in the F. case, the Senate recognized that the court may, in addition to the grounds specified in Art. 134 and 135 of the Code, refer to other circumstances causing leniency towards the perpetrator.

The law included the following in this group of circumstances:

1. Full sincere consciousness of the defendant, who confessed or was taken in for questioning on suspicion, if he not only indicates all accomplices, but also, by delivering correct and timely information, prevents the execution of any other criminal intent, so that this point could not be used a criminal who had no accomplices or no information other than what he committed.

2. Voluntary and full consciousness of the defendant, if he deserves special leniency due to previous impeccable service or excellent merits and merits.

3. Long-term stay on trial and in custody, if the defendant is found guilty of a crime that does not entail deprivation of all rights, regardless of the legal significance of the charge.

In the Criminal Codes of the RSFSR of 1922 and 1926. Exceptional circumstances were also mentioned, but there was no list of them that would allow imposing a punishment below the lowest limit provided for in the relevant article of the Special Part of the Criminal Code. The legislator in both Codes provided for the possibility of determining a measure of social protection below the lower limit of punishment provided for by law, or of moving to another, less severe type or less severe measure of social protection.

Thus, Article 51 of the Criminal Code of 1926. prescribed that if the court, due to exceptional circumstances of the case, is convinced of the need to determine the measure of social protection below the lower limit specified in the relevant article of the Criminal Code, or to move on to another, less severe measure of social protection, not indicated in this article, it may allow such a deviation , but not otherwise than by accurately setting out in the verdict the motives that caused this retreat.

Article 37 of the Fundamentals of Criminal Legislation of 1958, just like the previous criminal law, did not disclose the content of “exceptional” circumstances, but the court was ordered to take into account the identity of the perpetrator in order to allow such mitigation.

The issue of exceptional circumstances was resolved differently in the new Criminal Code of 1996.

Part 1 of Article 64 deals with exceptional circumstances related to

1) the goals and motives of the crime, 2) the role of the perpetrator,

3) his behavior during or after the commission of the crime,

4) other circumstances that significantly reduce the degree of public danger of the crime, as well as when

5) active assistance of a participant in a group crime in solving this crime. Comparison of exceptional circumstances that make it possible to assign a more lenient punishment than provided for a given crime in the Criminal Code of 1960. and Criminal Code 1997 shows that the current criminal law determines the ability of the court to impose a more lenient punishment by the presence of only exceptional circumstances of the case (goals, motives, role of the perpetrator, his behavior during and after the commission of the crime, etc.), while in the Criminal Code of 1960. - and circumstances characterizing the individual.

But to reduce the punishment below the lowest limit, two types of circumstances are required: objective and subjective. Taken together, they must show that the committed act and the identity of the perpetrator represent an exception in a series of criminal attacks, the circumstances of the commission of which correspond to the elements of crimes specified in the articles of the Special Part of the Criminal Code.

In any case, whatever the motives of the legislator, one thing is clear: the legislator’s establishment of exceptional circumstances of the case as the only basis for imposing a punishment below the lowest limit can be understood as an underestimation of the circumstances characterizing the individual.

Analysis of the formulation of exceptional circumstances allows us to reveal the legislator's shortcomings when deciding on the identification of two groups of circumstances characterizing the crime and the individual.

Firstly, the circumstances of the first type include a set of random factors - “circumstances of the case related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, and other circumstances that significantly reduce the degree of public danger of the crime.” At the same time, “active assistance of a participant in a group crime in solving this crime” is named as an independent type of circumstances.

Thus, the scientific sequence of presentation of circumstances reflecting the objective, subjective aspects of the crime and personality is violated.

Secondly, the behavior of the perpetrator after the commission of the crime, in our opinion, is clearly erroneously attributed to the circumstances characterizing the social danger of the crime.

Thirdly, it is controversial to attribute goals and motives to the circumstances that determine the social danger of a crime.

Fourthly, the role of the individual is significantly reduced. More logical from the point of view of criminal law doctrine in solving this problem is the formulation of the grounds for imposing a more lenient punishment, proposed by the authors of the concept of the future development of criminal legislation: “The circumstances that collectively characterize the committed act can be recognized as exceptional , the identity of the convicted person, the degree and form of his guilt, the causes and conditions of the crime committed, the person’s behavior before and after the commission of the crime, his efforts to compensate for the damage or eliminate the harm caused, assistance in solving the crime, etc.”

Part 2 of Article 64 of the Criminal Code recognizes both individual mitigating circumstances and the totality of such circumstances as exceptional. The inclusion of this provision in the law allowed us to solve two problems.

Firstly, the basis for imposing a punishment below the lower limit of the article of the Special Part may be one single circumstance of the case.

Secondly, the court, guided by the specific materials of the case, has the right to take into account as exceptional even those circumstances that are not included in the list of mitigating factors. When assigning punishment to a specific person, the court may come to the conclusion that imposing even the mildest type of punishment and the minimum amount provided for by the sanction for a given crime will be unfair. Hence, in our opinion, the law provides for the possibility of reducing it.

Statistics show that courts have begun to increasingly use lenient punishment. Thus, in the Vologda region in 1996, of the total number of persons sentenced to imprisonment, the courts imposed a more lenient punishment on 3.1 percent of persons; in 1997, - 6.4, in 1998 - 7.3, in 1999 - 7.8, in 2000 - 8.1. At the same time, the unsuccessful, in our opinion, formulation of the list of exceptional circumstances causes significant difficulties for the courts in determining such circumstances.

Thus, in published judicial practice, both those included in the list (for example, full compensation for material damage from theft - the case of M. and K.) and those not included (for example, the presence of four children, of which two are minors, the unlawful behavior of the victim) are considered exceptional. , positive characteristics of the perpetrators - D.’s case). According to our calculations, the circumstances of the first and second of these groups are taken into account by the courts in a ratio of two to three.

This is not surprising, since, firstly, the list of circumstances under study is open, and secondly, the legislator did not include in the list the identity of the perpetrator in all its diversity.

There is also no consensus among scientists regarding exceptional circumstances. In the science of criminal law, some propose to abandon exceptional circumstances, others recognize the existence of exceptional circumstances only in the absence of aggravating ones. The problem in this case is that exactly we are studying: the imposition of punishment within the sanction of the article of the Special Part or going beyond its boundaries.

The court does not have the right to impose a punishment below the minimum limit that is determined for this type of punishment by the article of the General Part of the Criminal Code. Courts often make mistakes in this matter. Thus, by the verdict of the Vologda City Court, citizen A. was convicted under Part 1 of Article 289 of the Criminal Code with the application of Article 64 of the Criminal Code to two months of imprisonment, that is, he was given a sentence below the minimum allowable by law .Courts often have a question about whether it is possible to impose a punishment below the lower limit if the sanction is alternative and provides for more lenient types of punishment than the one imposed using Article 64.

In this regard, in paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of imposing criminal punishment by courts” dated June 11, 1999. No. 40 provides an explanation according to which any milder type of punishment may be imposed, not specified in the sanction of the article of the Special Part of the Criminal Code, including a fine, deprivation of the right to hold certain positions or engage in certain activities, and correctional labor.

The imposition of a punishment below the lower limit is not prevented by the presence of alternative, milder types of punishment in the same sanction. We believe that the court must first exhaust the sanction and, if it provides, along with deprivation of liberty, a type of punishment such as a fine (for example, Part 2 of Article 158), then it is impossible to assign correctional labor without bypassing the fine. We believe that recommendations of the Plenum of the Supreme Court of the Russian Federation “On the judicial verdict” dated April 29, 1996 No. 1 regarding the indication in the operative part of the verdict that the punishment is determined under the relevant article using Article 64 of the Criminal Code must be reflected in Article 308 of the Code of Criminal Procedure of the Russian Federation.

The court has the right to impose a basic punishment below the minimum or choose a more lenient type of punishment than provided for by the sanction, and at the same time exempt from the additional punishment provided for by the sanction in the form of a mandatory one. The peculiarity is that it is impossible to pre-select from the entire set of circumstances permitted by law (specified in Article 64 of the Criminal Code, or not specified separately or in combination) those that give the right to apply this norm. This is truly a question of fact and must be decided each time taking into account the requirements of the article and the public danger or characteristics of a particular person. Judicial practice shows that an individual circumstance of a case can play the role of an exceptional one, if it is assessed as such not in isolation from all the established facts in the case, but in conjunction with them.

Let us note that at present the legislator, firstly, does not make the possibility of choosing a punishment below the lower limit dependent on the number of mitigating circumstances established in the case.

Secondly, this choice does not connect with the inclusion of these factors in the legislative list; thirdly, the legislator abandoned what he had previously enshrined in Article 38 of the Fundamentals of the USSR of 1958. and Article 43 of the Criminal Code of 1960. rules on the mandatory indication of the reasons for the decision made.

Fourthly, the rules of Article 64 of the Criminal Code of the Russian Federation can be extended not only to basic, but also to additional punishments.

Taking into account the above, we offer our own version of Article 64 of the Criminal Code of the Russian Federation :

"1. In the presence of exceptional circumstances, the punishment may be imposed below the lower limit provided for by the relevant article of the Special Part of this Code, or the court may impose a more lenient type of punishment than provided for by this article or not apply an additional type of punishment provided for as mandatory.

2. Individual mitigating circumstances characterizing the social degree of danger, the purpose, motives, causes and conditions of the crime committed, the identity of the perpetrator, the form and degree of guilt, behavior before and after the crime, his efforts to compensate for damage or causing harm, may be recognized as exceptional. assistance in solving a crime, and especially a group crime and a combination of such circumstances.”

Note that if at the end of the last century the application of Article 43 of the Criminal Code of the RSFSR in Russia was almost a general rule (in 1996 - 7.2 percent, 1987 - 8.4, 1998 - 8.2), then in recent years these indicators have decreased. Thus, according to some estimates, in the Republic of Tatarstan I 1999. Punishment according to the rules of Article 64 of the Criminal Code was imposed in 3.6 percent of cases of all persons brought to criminal liability in 2000. - 5.4. In conclusion, we emphasize that the frequent use by courts when imposing punishment of the provisions of Art. 43 of the Criminal Code of 1960, Art. 64 of the Criminal Code of 1997. - a clear sign that the lower limits of sanctions in the articles of Russian criminal law are unjustifiably high.

Victor ANUFRIEV, Honored Lawyer of the Russian Federation,

Sergey DONETS, lawyer, Vologda.

Imposing a punishment more lenient than provided for the crime

By virtue of Art. 64 of the Criminal Code of the Russian Federation, the appointment of a more lenient punishment than provided for in the corresponding article of the Special Part of the Criminal Code of the Russian Federation is possible in the presence of exceptional circumstances,

significantly reducing the degree of public danger of a crime committed by a person, or with the active assistance of a participant in a group crime in solving this crime.

The rules for assigning a more lenient punishment than provided for by the sanction for a given crime apply to all categories of crimes provided for in Art. 15 of the Criminal Code of the Russian Federation, - from minor to especially serious. The legal basis for imposing such a punishment is the presence of exceptional circumstances, as well as the active assistance of a participant in a group crime in solving this crime.

Article 64 of the Criminal Code of the Russian Federation provides an approximate list of circumstances that can be classified as exceptional - these are:

goals and motives of the crime;
the role of the culprit;
his behavior during or after the commission of the crime;
active assistance of a participant in a group crime in solving this crime;
other circumstances that significantly reduce the degree of public danger of the crime.

Other circumstances may also be considered exceptional, for example, mitigating circumstances characterizing the personality of the perpetrator, both specified in the law and not specified.

If there are exceptional circumstances, the punishment:

may be assigned below the lower limit provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation;
the court may impose a more lenient punishment than provided for in this article;
the court may not apply an additional type of punishment provided for as mandatory.

Both individual mitigating circumstances and a combination of such circumstances may be considered exceptional. Within the meaning of the law, if mitigating circumstances are taken into account by the court when assigning punishment according to the rules of Art. 62 of the Criminal Code of the Russian Federation, they themselves cannot be taken into account again when applying Art. 64 of the Criminal Code of the Russian Federation.

The imposition of a more lenient punishment than provided for a given crime is not prevented by the presence in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, under which the person was found guilty, of alternative, more lenient types of punishment.

Taking into account the rules contained in Art. 64 of the Criminal Code of the Russian Federation, any milder type of basic punishment may be assigned, not specified in the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation, including:

fine;
deprivation of the right to hold certain positions or engage in certain activities;
correctional work.

Moreover, this type of punishment must not be lower than the amounts or terms specified in the relevant articles of the General Part of the Criminal Code of the Russian Federation in relation to each type of punishment.

Non-application of an additional type of punishment as a mitigation is possible only for those crimes whose sanctions provide for an additional punishment as mandatory, and not as an alternative to its application.

Everything about criminal cases

I). What happened at first instance

The court of first instance mixed up everything when imposing the punishment:

— did not take into account the instructions in paragraph 34

Plenum No. 58, according to which the period for preparation is first counted from
Part 2 of 66 of the Criminal Code
, and then
62 of the Criminal Code
.

- in paragraph 34

Plenum No. 58 expressly states that in such cases a reference to
Article 64 of the Criminal Code
is not required.

II). What happened in the appeal

first

: the appellate court noticed the errors of the first instance court when imposing punishment and applied the instructions of
paragraph 34
of Plenum No. 58, according to which the preparation period is first counted from
Part 2 of 66 of the Criminal Code

62 of the Criminal Code
is applied .

— the appeal court commuted the sentence, making the correct calculation. It should be understood that the appeal did not benefit you (that is, this is not the result of any special kindness).

- although the appeal court reduced the term, it only eliminated a mathematical error. This is not his mercy; in any case, this would have happened higher in the cassation stage. That is, it was a necessary decision; there were no options for appeal.

second

: the appellate court removed from the verdict the reference to norm
64 of the Criminal Code
.

III). Can this be used in cassation?

— is it possible to “catch onto” something under such circumstances in a cassation appeal?

- I believe that you can try to use this: although the court of appeal seems to have done everything correctly (by shortening the term).

- but he removed from the sentence the reference to norm 64 of the Criminal Code

and thereby worsened the situation of the convicted person.

Why did he remove norm 64 of the Criminal Code

?
He was guided by the same paragraph 34
of Plenum No. 58, we read it:

“If, as a result of the application of the articles 66

and (or)
62 of the Criminal Code
, the term or amount of punishment that may be assigned to the convicted person turns out to be less severe than the lower limit of the most severe type of punishment provided for by the sanction of the corresponding article of the Special Part of the Criminal Code, then the punishment is imposed below the lower limit without reference to
64 of the Criminal Code
" .

— does an appeal have the right to tighten the situation of the convicted person? Actually, it has, the norm of clause 2, part 1 389.26 of the Code of Criminal Procedure

allows the appellate court to increase the punishment.

- but there is a nuance here that is of great importance: an appeal can change the sentence towards worsening only if the prosecutor or the victim requests it ( Part 1 389.24 of the Code of Criminal Procedure

and
paragraph 16
of Plenum No. 26).

- if the prosecution did not request that the reference to the application of Article 64 of the Criminal Code

, then the appellate court exceeded its powers.

— that is, a contradictory situation has arisen: the appellate court is both right and wrong at the same time:

The appeal rightfully eliminated the violation by removing norm
64 of the Criminal Code
, thereby fulfilling the instructions of the Supreme Court contained in
paragraph 34
of Plenum No. 58.

but on the other hand, the appeal violated
Part 1 389.24 of the Criminal Procedure Code
and
Clause 16
of Plenum No. 26.

- I believe that we can try to justify that there is a significant violation of the criminal law here, since it directly affected the amount of punishment ( paragraph 17

Plenum No. 19) and that this is the basis for changing the appeal decision (
Part 1 401.15 of the Code of Criminal Procedure
).