The issue of sentencing in criminal proceedings is one of the most difficult.

There are no identical cases, each crime is unique, if only due to the fact that it is committed by different subjects with different subjective motives.

When imposing a sentence, a judge is obliged to take into account all the specifics of what happened in order to comply with the guarantee of the fairness of the assignment of responsibility. The amount of the penalty can vary significantly when considering aggravating and mitigating circumstances.

Extenuating circumstances(Art. 61 of the Criminal Code of the Russian Federation) allow to bring the guilty person to the minimum possible punishment. From the material of the article you will learn what is a mitigating circumstance in a criminal case, and how they can affect the verdict.

Circumstances mitigating criminal liability constitute legal facts confirming the positive characteristics of the defendant and / or the low level of his public danger.

It is due to these two key circumstances that the convicted person can receive the minimum punishment under the article.

So, an open list of mitigating circumstances is presented in Art. 61 of the Criminal Code of the Russian Federation in the following form:

Other circumstances directly related to the case may also be taken into account as mitigating factors.

In order to present the defendant before the court in the best possible way, a lawyer must be solicited. All positive characteristics from places of work or residence, certificates of high income, stating that he is the only breadwinner in a family with young children, must be attached to the materials of the criminal case.

The court is obliged to take into account all the material materials in the case for sentencing. The verdict must necessarily contain those mitigating circumstances that were taken into account by the court when sentencing.

The first option of an extenuating circumstance can be applied by the court only if all the conditions prescribed in it are present.

The offense must be committed for the first time, qualify as a minor offense, or moderate, and also be committed due to unforeseen circumstances.

So, in order to be able to say that the crime was committed for the first time, one of the following conditions must be met:

Previously, the defendant has not been convicted of the crimes committed;
The previous sentence of the defendant did not come into legal force;
The statute of limitations has expired for previously committed crimes;
Previous convictions removed or canceled at general grounds or through amnesty and pardon.

The fact of accidentally committing a crime is established in each case individually... This can be weather conditions, actions in the framework of other criminal offenses, the commission of a crime under suggestion.

A person who has not achieved full legal capacity is considered to be completely unaware of the actions committed.

It is easier to manipulate a teenager, he does not know the laws, does not realize the real responsibility for his actions.

The appointment of criminal punishment for a minor is separately spelled out in Ch. 14 of the Criminal Code of the Russian Federation.

In our country, a minor is a person who has not reached the age of 18 years.

Pregnancy

Sometimes women in position also do not differ in complete sanity.... Due to the riot of hormones, increased irritability and impressionability, they are able to perform actions for which they will subsequently have to repent.

Moreover, a woman, carrying a child under her heart, will do her best to dangerous situation protect your fetus. It is here that the limits of necessary defense are often exceeded.

A woman in a state of pregnancy can even get a delay in the execution of her sentence if she submits the necessary petition to the court.

In order for the children to be recognized by the court as mitigating the defendant's guilt in circumstances, they must not be more than 14 years old. The presence of other relatives is irrelevant for the court. The fact itself is important.

According to the Resolution of the Plenum of the RF Armed Forces of January 11, 2007, the presence of children cannot be recognized as mitigating facts in the following situations:

The defendant has committed a criminal act against his own child;
The defendant has committed a crime against an adopted child or a child under his care;
The defendant is officially deprived of parental rights.

Fact of compassion or difficult circumstances

To serve as mitigation in a criminal case, these circumstances must be the main reason for committing a crime. The investigative base is important here.

Investigators and investigators must be sure that compassion or a difficult situation served as a motive, not a tool for covering up the crime.

Difficult life circumstances can be in a situation where a person, in the absence of money for subsistence, steals food, falsifies documents to obtain guaranteed rights and privileges.

The motive of compassion can be used when committing a crime in the form of euthanasia of a seriously ill patient.

Often, wanting to alleviate the suffering of a loved one, people go to legal murder, medication helping the patient to die.

Compulsion to a crime as a mitigating circumstance can take the following forms:

Physical coercion;
Mental compulsion;
Committing a crime due to material or service dependence.

In such a situation, it is important for the investigation to prove that the defendant on his own could not resist coercion and avoid a crime.

An example of such an act may be the issuance of a large amount by a bank teller Money a robber who threatens her with reprisals. The money is not hers, and she has no right to dispose of it, but this behavior saved her from death.

The same situation is possible with pressure on a high-ranking employee, who is forced to sign any papers, threatening him with reprisals.

This paragraph of Art. 61 of the Criminal Code of the Russian Federation may have a mitigating effect in the following circumstances:

Violation of the conditions of necessary defense;
When arresting a criminal;
At urgent need and reasonable risk;
When executing an order or instruction.

When the fact of the lawfulness of such actions is established, the crime may completely lose its composition, and the defendant will be acquitted.

This is especially true of orders and orders when police officers have to shoot criminals.

Immoral behavior of the victim

In order for the unlawful behavior of the injured party to become the basis for mitigating the punishment of the defendant, it is necessary that it be recognized as truly dangerous or immoral. For children's pranks, no one has the right to kill children.

The unlawful behavior of the victim should occur in the form of bullying or humiliation, which could have an impact on the mental state of the defendant, close to a state of passion.

This mitigating circumstance applies to all criminals who have admitted their guilt.

It does not matter when the defendant admitted guilt: before his capture or after his arrest. In both cases, this will be considered a mitigating circumstance.

A small proportion of them report to the police on their own. Most often, criminals confess to a crime after their arrest, in order to reduce the severity of punishment, from which it is already unrealistic to get out.

The whole complex of mitigating circumstances of the case under this item includes:

Oral or written confession;
Active assistance in the investigation and solution of the crime;
Exposing accomplices in a crime;
Search for property stolen during the commission of a crime.

The defendant thoroughly tells and shows the circumstances of the crime during investigative measures and interrogations.

Any attempts to make amends for the harm caused by the crime, to alleviate the fate and condition of the victim, to reduce the risks of serious consequences, if committed voluntarily, can be recognized as mitigating circumstances.

An example is a situation when a driver knocks down a pedestrian, then calls an ambulance for him, pays for medications in the course of treatment, and regularly visits him in the ward.

In practice, in the courts in 2020, when considering a criminal case, a whole list of mitigating circumstances is always taken into account.

In court, not only the lawyer speaks about possible mitigating circumstances, but also the prosecutor.

The public prosecutor in the debate also refers to the mitigating circumstances of the defendant, while still placing greater emphasis on aggravating factors.

In general, the mention of mitigation of punishment in a case always occurs within the framework of the debate of the parties.

What extenuating circumstances may still affect the sentence? Also, in addition to the mitigating circumstances prescribed in the Criminal Code of the Russian Federation, the following characteristics are often mentioned:

Simply put, anything can be referred to as mitigation.... The judge will still take into account only those circumstances that he considers significant.

In the presence of mitigating circumstances, they still will not take on particular importance for the appointment of punishment.

Mitigating circumstances provide a guarantee to the defendant to consider his case in all fairness of the law, taking into account his motives and the circumstances of the case.

In fact, most of the mitigating circumstances have no real benefit in reducing punishment. They act only as a fiction, which is necessary to be pronounced in the framework of the debate of the parties, and to be reflected in the text of the verdict.

Criminal Code, N 63-FZ | Art. 61 of the Criminal Code of the Russian Federation

Article 61 of the Criminal Code of the Russian Federation. Circumstances mitigating punishment ( current edition)

1. Mitigating circumstances are recognized:

a) the commission of a crime of minor or medium gravity for the first time due to a coincidence of circumstances;

b) the minority of the perpetrator;

c) pregnancy;

d) the guilty party has young children;

e) the commission of a crime due to a combination of difficult life circumstances or on the basis of compassion;

f) commission of a crime as a result of physical or mental coercion or due to material, service or other dependence;

g) the commission of a crime in violation of the conditions of lawfulness of necessary defense, detention of a person who committed a crime, extreme necessity, reasonable risk, execution of an order or instruction;

h) unlawfulness or immorality of the victim's behavior, which was the reason for the crime;

i) surrender, active assistance in the disclosure and investigation of a crime, exposure and prosecution of other accomplices in a crime, search for property obtained as a result of a crime;

j) provision of medical and other assistance to the victim immediately after the commission of the crime, voluntary refund property damage and moral harm caused as a result of a crime, other actions aimed at making amends for the harm caused to the victim.

2. When imposing a punishment, circumstances other than foreseen by part the first of this article.

3. If a mitigating 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 re-taken into account when imposing a punishment.

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Commentary on Art. 61 of the Criminal Code of the Russian Federation

Judicial practice under article 61 of the Criminal Code of the Russian Federation:

Supreme Court decision: Determination N 9-APU17-1, Judicial Collegium for Criminal Cases, appeal
Within the meaning of the law, under the confession, which, by virtue of clause “and part 1 of Article 61 of the Criminal Code of the Russian Federation, is a circumstance mitigating punishment should be understood as a voluntary communication of a person about a crime committed by him or with his participation, made in writing or orally ...
Supreme Court decision: Determination N 81-APU17-11, Judicial Collegium for Criminal Cases, appeal
Despite the presence of the defendant mitigating the punishment, the circumstances provided for by paragraph "and" Part 1 of Art. 61 of the Criminal Code of the Russian Federation, and the absence of aggravating circumstances for the punishment, the court came to the correct conclusion that the provisions of Part 1 of Art. 62 of the Criminal Code of the Russian Federation, since the sanction of Part 2 of Art. 105 of the Criminal Code of the Russian Federation provides for punishment in the form of life imprisonment and the death penalty ...
Decision of the Supreme Court: Determination N 46-О17-1, Judicial Collegium for Criminal Cases, cassation
When appointing the convict Efimov V.A. punishment the court, recognizing his confession, his testimony, recognized by the court reliable, as an active contribution to the disclosure of the crime, mitigating the punishment by the circumstances provided for in paragraph "and" part 1 of Art. 61 of the Criminal Code of the Russian Federation, contrary to the arguments of the complaint, correctly applied the provisions of Art. 62 of the Criminal Code of the Russian Federation and appointed for each of the crimes a sentence of no more than three quarters maximum term the most severe type of punishment provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation. Federal law dated June 29, 2009 No. 141-FZ of the provisions of Art. 62 of the Criminal Code of the Russian Federation on sentencing in the presence of mitigating circumstances provided for in paragraphs. "And" and (or) "k" part 1 of article 61 of the Criminal Code of the Russian Federation, softened ...

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h) unlawfulness or immorality of the victim's behavior, which was the reason for the crime;

Part one of Article 61 of the Criminal Code Russian Federation establishes that mitigating circumstances include confession, active assistance in the disclosure and investigation of a crime, exposure and prosecution of other accomplices in a crime, search for property obtained as a result of a crime (paragraph "i"). In this case, the circumstances mitigating the punishment are recognized as such, taking into account the established in court session the actual circumstances of the criminal case. In any case, the non-recognition of the circumstance mitigating the punishment must be motivated in the descriptive and motivating part of the verdict (paragraph 8 of the resolution of the Plenum The Supreme Court Of the Russian Federation of January 11, 2007 N 2 "On the practice of imposing criminal punishment by the courts of the Russian Federation") (definitions The Constitutional Court Of the Russian Federation of March 20, 2014 N 585-O and of September 25, 2014 N 1991-O).

1. Mitigating circumstances are recognized:

a) the commission of a crime of minor or medium gravity for the first time due to a coincidence of circumstances;

b) the minority of the perpetrator;

c) pregnancy;

d) the guilty party has young children;

e) the commission of a crime due to a combination of difficult life circumstances or on the basis of compassion;

f) commission of a crime as a result of physical or mental coercion or due to material, service or other dependence;

h) unlawfulness or immorality of the victim's behavior, which was the reason for the crime;

i) surrender, active assistance in the disclosure and investigation of a crime, exposure and prosecution of other accomplices in a crime, search for property obtained as a result of a crime;

j) provision of medical and other assistance to the victim immediately after the commission of the crime, voluntary compensation for property damage and moral damage caused as a result of the crime, other actions aimed at redressing the harm caused to the victim.

2. When imposing a punishment, circumstances that are not provided for in the first part of this article may also be taken into account as mitigating.

3. If a mitigating 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 re-taken into account when imposing a punishment.

Commentary on Art. 61 of the Criminal Code of the Russian Federation

1. The commented article contains circumstances mitigating the punishment, i. E. such circumstances that allow the court, within the limits of the sanction of the Special Part of the Criminal Code, to choose the most just type and amount of punishment, as a rule, below its maximum term and amount. It is fundamentally important that the list given in the law is approximate, not exhaustive. The court has the right to recognize as mitigating any other circumstance at its discretion. In this case, it is necessary to indicate in the verdict exactly which circumstance and for what reasons is recognized as mitigating.

2. Within the meaning of the law, a circumstance mitigating punishment in the form of the commission of a minor or medium-gravity crime for the first time as a result of an accidental coincidence of circumstances must contain all the indicated elements. The person who has committed one or more crimes, for none of which he has not been previously convicted, or when the previous verdict against him has not entered into legal force (clause 20 of the Resolution of the Plenum of the RF Armed Forces of January 11, 2007 N 2 ). This category also includes persons who previously committed crimes, but with respect to them the statute of limitations for criminal prosecution (Article 78 of the Criminal Code) has expired, the statute of limitations for the execution of a guilty verdict (Article 83 of the Criminal Code) has expired, if their convictions have been removed due to acts of amnesty ( Article 84 of the Criminal Code), pardon (Article 85 of the Criminal Code), if the conviction has been removed or canceled on a general basis (Article 86 of the Criminal Code). The issue of classifying a crime as a minor gravity is resolved in Art. 15 of the Criminal Code. The presence of a coincidence of circumstances is established in each specific case. It can be expressed, for example, in such a situation as the commission of a crime under the influence of an adult who took advantage of the inexperience of a minor, in an unexpected change in weather conditions that contributed to the violation of the rules road traffic... In itself, the fact of committing a crime for the first time is not a mitigating circumstance, since the absence of a criminal record is a normal state of a person, and not his merit.

3. Criminal liability and punishment of minors has its own characteristics (see commentary to Chapter 14). At the same time, the law cannot fail to take into account that the adolescent's consciousness is in the process of formation, and he sometimes cannot assess the current situation with full responsibility and objectivity, and is able to fall under the influence of more aggressive, adult members of a criminal group. Therefore, the minority of the perpetrator itself is recognized by law as one of the circumstances mitigating the punishment.

4. Pregnancy is recognized as a circumstance that mitigates the punishment of the perpetrator, primarily based on the principles of humanism, which is dictated by the concern for the health of the child and the woman herself. During pregnancy, there is increased irritability, irascibility, and this should be taken into account when sentencing.

5. The presence of young children in the possession of the perpetrator is also considered as a mitigating circumstance, which requires research and appropriate assessment. For example, the presence of young children of the guilty person cannot be regarded as a mitigating circumstance if the convicted person committed a crime against his child, as well as against an adopted (adopted) or dependent convict or a child under his guardianship, or is deprived of parental rights. In any case, the non-recognition of the circumstance as mitigating the punishment must be motivated in the descriptive and motivating part of the verdict (paragraph 8 of the Resolution of the Plenum of the RF Armed Forces of January 11, 2007 N 2).

6. The confluence of difficult life circumstances or the motive of compassion relate to extenuating circumstances only if committed crime was caused precisely by these circumstances. Such conditions can be recognized, for example, the lack of funds for the purchase of food in the event of loss of work - in case of theft of someone else's property; serious illness of the guilty person or his relatives - in the case of the theft of medicinal drugs. The motive of compassion can take place, for example, when giving, at the request of a seriously ill patient, a large dose of medicine, from which, knowingly for the guilty person, the patient will die. Euthanasia can be recognized as a mitigating circumstance when a person is found guilty of murder.

7. The commission of a crime as a result of physical or mental coercion or by virtue of material, service or other dependence can be considered a mitigating circumstance only in the case when such dependence or coercion is recognized by the court as actually taking place, and the actions of the coerced person will be forced because his will is usually suppressed by illegal actions. but criminal liability in this case, it also occurs when the perpetrator could resist illegal actions, but for some reason did not do it. At the same time, criminal liability, and therefore punishment, cannot occur if the impact in the form of coercion puts the person committing illegal actions, in conditions of extreme necessity. For example, the transfer of money by a bank teller to an attacker who threatened to use a weapon or take his life.

8. Circumstances mitigating punishment, provided for by paragraph "g" of Part 1 of Art. 61 of the Criminal Code (commission of a crime in violation of the conditions of the lawfulness of necessary defense, arrest of a person who committed a crime, extreme necessity, reasonable risk, execution of an order or instruction) have specific features. They consist in the fact that, subject to the conditions of their legality, these circumstances (specified in Articles 37 - 42 of the Criminal Code) exclude the very criminality of the act, and, consequently, its punishability. On the other hand, these circumstances may be an integral part of the disposition of the corresponding article of the Special Part of the Criminal Code. For example, a murder committed in excess of the limits of necessary defense or in excess of the measures necessary to detain a person who committed a crime - Art. 108 of the Criminal Code; infliction of grave or moderate harm to health when the limits of necessary defense are exceeded - Art. 114 of the Criminal Code. In this case, the rule provided for in part 3 of the commented article must be taken into account. If a mitigating circumstance is provided for by the relevant article of the Special Part of the Criminal Code as a sign of a crime, it in itself cannot be re-taken into account when imposing a punishment. Thus, it is necessary to exclude these cases from the scope of these circumstances as mitigating the punishment. Thus, these circumstances are to be taken into account as mitigating punishment only in cases where a person commits a crime in violation of the conditions for the legality of actions specified in Art. Art. 37 - 42 CC.

9. The unlawful or immoral behavior of the victim, which was the reason for the crime, is close to the concept of the state of passion of the guilty person. Intense emotional disturbance can be sudden and caused by violence, bullying, or gross insult. unlawful behavior of the victim. However, in some cases such significant change mental state as a result misconduct the victim does not arise from the guilty party. On the other hand, the nature of the unlawful behavior of the victim must also be taken into account. For example, if a child steals apples in the garden out of childish mischief, this misconduct cannot be considered as a mitigating circumstance in relation to the person who committed the cold-blooded murder of such a child.

10. A confession as a circumstance mitigating punishment is taken into account in cases where a person verbally or writing voluntarily informed the body implementing criminal prosecution, about a crime committed by him or with his participation (Article 142 of the Criminal Procedure Code). Often, the guilty person informs about the commission of a crime even before anyone knows about it, including law enforcement... The form of this message does not matter - a separate oral or written statement to law enforcement or other authorities, an explanation, an interrogation protocol. At the same time, a report on a crime made by a person after his arrest on suspicion of committing a crime does not exclude the recognition of this message as a mitigating circumstance. For example, if a person has been hiding from the criminal prosecution bodies for a long time, but then voluntarily appears in these bodies. In a number of cases, a person detained on suspicion of committing a specific crime reports other crimes committed by him, unknown to the criminal prosecution authorities. Such a statement should be recognized as a confession and taken into account when sentencing for these crimes. If a person's report of a crime committed with his participation is the basis of a conviction by the court, then this communication is also considered as a confession, even if the person in the course preliminary investigation or changed her testimony at the hearing.

For example, the Judicial Collegium for Criminal Cases of the RF Armed Forces changed court decisions in terms of sentencing, indicating the following. When sentencing, the court did not recognize the convicted person's surrender as a circumstance mitigating the punishment. In support of its decision, the court referred to the fact that B. had given testimony about the circumstances of the crime committed while being detained by the investigating authorities. In addition, the investigating authorities had information (explanations by P. and A.) about the murder of S. and the circumstances of the crime. At the same time, when deciding whether there was such a mitigating circumstance as a confession, the courts should check whether the report of the crime was voluntary and whether this is due to the fact that the person was detained and confirmed his participation in the commission crimes. B.'s crime was committed on October 7, 2003. On the same day, explanations from witnesses were received, to which the court refers in the verdict. However, from the explanations these persons it follows that they saw only how a man they did not know beat a woman. However, none of them reported that it was B. who was the person who committed the crime. The next day, October 8, 2003, B. applied to the investigating authorities and, having reported the crime he had committed, wrote a statement of confession. The protocol on his surrender was drawn up at 13 o'clock, and at 15 o'clock. a protocol was drawn up on the arrest of B. as a person suspected of committing a crime. In such circumstances, the court groundlessly did not recognize the confession as a circumstance mitigating the punishment. In addition, as such a circumstance should be recognized the immoral behavior of the victim, which was the reason for the crime. From the materials of the case it is clear that the victim was drunk, spent the night not at home, but with other people, where the convict found her. In view of the above, B.'s sentence was reduced.
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BVS RF. 2029, no. 12, p. 23.

On the other hand, if the investigating authorities already had information about the crime (testimony of victims, witnesses, procedural documents etc.) and the detained person was aware of this, then his confirmation of the fact of participation in the commission of a crime cannot be regarded as a confession. It can be recognized as another mitigating circumstance (for example, the exposure of other participants in the crime).

An active contribution to the disclosure and investigation of a crime is expressed in the fact that the perpetrator provides the investigating authorities with information that was not previously known to them (indicates the location of the instruments of the crime, helps in organizing and conducting investigative experiments, accounting expertise, presents material evidence, etc.). The exposure and prosecution of other accomplices in a crime and assistance in the search for property obtained as a result of the commission of a crime are certain forms of active assistance to the perpetrator in solving the crime. For the recognition of these circumstances as mitigating the punishment, the condition of the commission of these actions voluntarily, and not under the pressure of available evidence, remains important.

11. Circumstances mitigating punishment are also the provision of medical and other assistance to the victim immediately after the commission of the crime, voluntary compensation for property damage and moral damage caused as a result of the crime, as well as other actions aimed at redressing the harm caused to the victim. These circumstances testify to the active repentance of the guilty person, to the lesser degree of social danger of his personality.

12. The Criminal Code contains a number of corpus delicti with so-called mitigating circumstances (Articles 106 - 108, 113, 114). The same circumstances are listed as mitigating the punishment in paragraphs "g" and "h" of Part 1 of the article being commented on. With this in mind, the law points out the impossibility of re-recognizing these circumstances if they are signs of a crime.

13. Taking into account the fact that the list of mitigating circumstances given in the commented article is not exhaustive, the court may recognize as such any other circumstances. As the court practice shows, the courts take into account as mitigating, for example, the following circumstances not provided for in the law: sincere repentance; admission of guilt, including partial; compensation for harm caused by a crime, including without taking into account voluntariness; the presence of diseases; absence of grave consequences from a crime; the victim's request for leniency; less active role of the perpetrator in committing a crime; the petition of the labor collective for the mitigation of punishment; studies in higher and secondary educational institutions; difficult financial situation of the family; participation in hostilities. Part 2 of Art. 22 of the Criminal Code states that a mental disorder that does not exclude sanity is taken into account by the court when sentencing. However, the legislator does not say how the courts should take into account this disorder. Mental disorder significantly complicates the work of the intellectual and volitional sphere of the subject's activity, which indicates its relatively lesser degree of social danger, and, therefore, should affect the reduction of the punishment. Therefore, this circumstance should be taken into account as mitigating punishment.

1. Mitigating circumstances are recognized: a) commission of a crime of small or medium gravity for the first time as a result of an accidental coincidence of circumstances; b) the minority of the perpetrator; c) pregnancy; d) the guilty party has young children; e) the commission of a crime due to a combination of difficult life circumstances or on the basis of compassion; f) commission of a crime as a result of physical or mental coercion or due to material, service or other dependence; g) the commission of a crime in violation of the conditions of lawfulness of necessary defense, detention of a person who committed a crime, extreme necessity, reasonable risk, execution of an order or instruction; h) unlawfulness or immorality of the victim's behavior, which was the reason for the crime; i) surrender, active assistance in the disclosure and investigation of a crime, exposure and prosecution of other accomplices in a crime, search for property obtained as a result of a crime; j) provision of medical and other assistance to the victim immediately after the commission of the crime, voluntary compensation for property damage and moral damage caused as a result of the crime, other actions aimed at redressing the harm caused to the victim. 2. When imposing a punishment, circumstances that are not provided for in the first part of this article may also be taken into account as mitigating. 3. If a mitigating 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 re-taken into account when imposing a punishment.

Legal advice under Art. 61 of the Criminal Code of the Russian Federation

Evgenia Shestakova

application of clause "I" of Art. 61 of the Criminal Code of the Russian Federation, as a mitigating situation, if there was no surrender, will it work?

Daria Belyaeva

application of clause "I" of Art. 61 of the Criminal Code of the Russian Federation, as a mitigating circumstance, if there was no surrender, will it work?
- No, it won't. in criminal cases, little rolls. acquittals little or no. Absolutely all circumstances will be taken into account by the court when imposing a punishment.

Polina Vorobyova

We are attracted by 264 h. 1 of the Criminal Code of the Russian Federation. Soften. obs-va: p. item "A", "Z", "K" Art. 61 of the Criminal Code of the Russian Federation can be used in 264 of the Criminal Code of the Russian Federation?

Karina Ivanova

How is the Criminal Code of the Russian Federation Art. 61 hours 1 item 3 ?. p.3 Circumstances mitigating punishment, illegality or immorality of the victim's behavior, which was the reason for the crime; In case of insult and harm of moderate severity of health of Article 112 of the Criminal Code of the Russian Federation, part 1, will Art. 61 part 1 clause 3, if yes, then you can article, law or judicial practice, where it is written, thank you very much in advance.
- and what crime is meant was committed in response to these actions? In general, with such questions it is necessary to write the circumstances of the case.
- Lawyer's answer:
  Article 90. Prejudice [Criminal Procedure Code of the Russian Federation] [Chapter 11] [Article 90] Circumstances established by a final judgment or other effective court decision adopted within the framework of a civil, arbitration or administrative proceedings, are recognized by the court, prosecutor, investigator, interrogator without additional verification. Moreover, such a verdict or decision cannot prejudge the guilt of persons who have not previously participated in the criminal case under consideration. In the Code of Civil Procedure of the Russian Federation - Part 2 of Art. 61 (if I'm not mistaken).

Valentin Moiseev

Soon the trial .... Hello. I have a court the day after tomorrow, my mother and I are acting as a plaintiff. 3 months ago my dad died in an accident. The culprit remained alive - a criminal case was opened under Art. 264 h. 3 of the Criminal Code of the Russian Federation. The culprit has never been convicted, there are positive characteristics from the place of residence and from work. I paid part of the sum for the burial of the Pope. He admits his guilt in full - the trial will be held in special order... The investigator said that we do not need a lawyer, they say, a waste of money. I have several questions: 1. What punishment can the culprit be given (can they be given a conditional sentence)? 2.My and my mother are asking for 1,000,000 rubles. for moral and material damage (the car went into ruin, they carried out an autoexamination.) There is also a certificate from a neuropathologist that my mother is suffering, she was prescribed treatment. It is clear that the court is unlikely to satisfy this amount. How much can the court satisfy? 3.How to prepare for the trial so as not to get confused? What can you advise us?

Lawyer's answer:
In my opinion, you can do without a lawyer. ... at least on a special order. 1. The amount of punishment is influenced by a number of factors. If we talk about its size, then the court will be limited in the presence of a special order (2/3 of the maximum punishment) and voluntary compensation for property damage (also 2/3) (partial compensation has recently also been recognized as a mitigating circumstance, clause 1 of Art. 61 of the Criminal Code of the Russian Federation, but it still depends on the amount paid, so it's not a fact), the presence of other mitigating circumstances for 2 years 2 months in prison. This will be the maximum punishment that can be imposed. If you want to be punished more severely, say that you object to a special order, motivating this by the fact that you need to impose a more severe punishment. As for the conditional / real punishment, then VERY much depends on your position. 2. With regard to harm. It is not clear from your message how much you are asking to recover moral damage, how much material damage, but they need to be separated! How much did mom ask, and how much did you ask? These are different claims. In this you need to decide before the process, clearly know what you will ask for. By the way, you can declare it orally, no one demands it in writing. The claim for compensation for property damage must be documented (the conclusion of the autoexamination at the cost, checks for burial, etc.). As for the amount. No, they are not overpriced, ask. Recently, large sums have also been satisfying. ... although it all depends on the practice of a particular region. ... With regard to the post of Lyudmila, "Immediately. Characteristics do not apply to the essence of the matter! 1 Demand to remove them from the case" .. This is not so. The characteristics are just relevant to the case and affect the sentencing. See Art. 60 h. 3 of the Criminal Code of the Russian Federation. You cannot remove them from the case. No way.

Nadezhda Gerasimova

the car has an accident, if the guilty owner of the car needs evidence of the birth of a child and information for the trial

It is for the court that it is necessary that the court can correctly qualify the act and impose a punishment. The presence of minor children in accordance with paragraph "G", part 1 of article 61 of the Criminal Code of the Russian Federation is a mitigating circumstance

- Lawyer's answer:

Grigory Kukharenko

mitigating circumstance. is it if I'm a single mother ... my son's dad died. 158.1

If the child is young, then yes, we look at paragraph "g" of Part 1 of Art. 61 of the Criminal Code of the Russian Federation

Daniil Krylasov

Curious. Will a person be jailed in our time who, being hungry, will steal food?

Lawyer's answer:
Firstly, only if damage is caused in excess of 1000 rubles (if with illegal entry into the premises / dwelling or by a group of persons - the amount of damage does not matter, even if it stole 30 rubles - already part 2, part 3 of Art. 158 of the Criminal Code RF). If the crime is committed for the first time, in the worst case, Art. 73 of the Criminal Code of the Russian Federation (conditional conviction). In addition, when imposing a punishment, the court may apply a mitigating circumstance: clause "d", part 1 of Art. 61 of the Criminal Code of the Russian Federation - the commission of a crime due to the confluence of difficult life circumstances.

Alena Fedorova

Help define the category of the crime ?. Article 106. Murder by a mother of a newborn child during or immediately after childbirth, as well as murder by a mother of a newborn child in a psycho-traumatic situation or in a state of mental disorder that does not exclude sanity, is punishable by restraint of liberty for a term of two to four years, or forced labor for up to five years, or imprisonment for the same period.

Lawyer's answer:
Hello! In accordance with the norms of the Criminal Code of Russia, namely, Article 15 of the Criminal Code of the Russian Federation, this crime is a crime of MEDIUM gravity, because for moderate crimes the maximum punishment is no more than 5 years. with. ... For this crime, the maximum punishment is 4 years. with. .But it is likely that for this crime a person will receive a CONDITIONAL conviction, on the basis of Art. 73 of the Criminal Code of the Russian Federation, if he contacts the investigation and there are other mitigating circumstances in accordance with Art. 61 of the Criminal Code of the Russian Federation. EVERYTHING DEPENDS ONLY ON THE MAN,

Nikita Bulganin

Please tell me what is the article of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, I know that this is a mitigating punishment, well, I wonder what they give for this?

We open the Article and in it everything is stated in great detail Article 61.. 1. mitigating circumstances are recognized: a) the commission for the first time of a crime of little gravity as a result of a coincidence ...

Oleg Maksimychev

they wrote a statement against me to the police. they threaten that they will start a case or ask 15 thousand ... and everything was like this .... walked with my sister (she came from another city) when we were driving home in a taxi (she was sitting in the front, I was in the back!) SHE stole the taxi driver's phone. I didn't even have this in my thoughts - they talked all the way, I said where I work, drove us to the entrance. having learned about the loss, he easily punched me and wrote an application. Well, if I wanted to steal, I would say my name, say where I work, and drive to my own entrance ?! on the trail. the day she returned the phone to him, plus she paid 2000 (damn it, I had to take a receipt). the police, as I said, are already asking for money ... I don't know what to do even ...

Lawyer's answer:
Compensation for harm does not exempt from punishment, but only mitigates it in accordance with Art. 61 of the Criminal Code of the Russian Federation. As for the theft, then that the statement got into the body of inquiry, the fact of the existence of a crime will be checked first. So the evidence base of the accusation will be based on the fact that YOU GAVE MONEY TO HIM, because once you gave it, it means stolen. There is no other evidence. No one has seen his phone, either you or your sister's. And it’s good if she didn’t insert her SIM card into it. And what gave a lift, yes, so what? If ug. case, immediately write to the CSS on this taxi driver that he, under the pretext of filing an application with the police, tried to blackmail you. You did not steal any phone and you do not have intent or theft of someone else's property, because they calmly talked about work, address, etc. If she did not insert a SIM card into it, ask for a billing request indicating the IMEI base station ... Insist that they did not take the bodies at least for themselves, and about your sister, say that they did not see anything at her place. Since if there is promotion, then it is more profitable to conduct business under Part 2 of Art. 158, and the more people take part in the crime, the longer the term. Although it will most likely be conditional, it is not pleasant enough. There is no motive, the case will be initiated, then it will be immediately closed for the absence of signs of corpus delicti. If, of course, you have not been previously convicted and not involved, all the more for similar acts. AND AT ANY WAY TO THE OVD, T.K. IN ANY CASE IF THE CASE IS EXCITED, THE INQUIROR WILL SEEK FOR ELECTION IN RESPECTING YOU, IT WILL BE UNSIGNED, BUT IT WILL BE SUBSCRIBED THIS IS NOT ACTION WALK ONLY WITH A DEFENDER. And his lawyer and not the state one. As a sister, stop communicating, otherwise sooner or later you will step into such fat that it will be oh so difficult to get out. But your business.

Zhanna Alexandrova

Help, right ?. Criminal punishment under Art. 206 h 2.6-15 years. But guided by Art. 68 hours 3 - may be less than 1/3 of the maximum period. it turns out 1-3 from 15. it turns out from 6-to 5. And you need to choose 5 years? right?

Lawyer's answer:
Certainly NOT correct. 2 mistakes were made. 1. Why are you guided by Part 3 of Art. 68 of the Criminal Code of the Russian Federation? Do you have a relapse or what? And the presence of softeners? But it doesn't matter ... .2. Let's say a relapse. Suppose there are softeners. You need to carefully read the norms that you refer to and which you apply. So, in accordance with Part 3 of Art. 68 of the Criminal Code of the Russian Federation in any kind of recidivism, if the court has established mitigating circumstances provided for by Art. 61 of the Criminal Code of the Russian Federation, the term of punishment can be assigned less than one third of the maximum term of the most severe type of punishment provided for the crime committed, but WITHIN THE SANCTIONS of the corresponding article (in your case, Article 206, part 2 of the Criminal Code of the Russian Federation, which is FROM 6 years ). And you are going to appoint 5 (mistake No. 1), and to be more precise, actually from part 3 of Art. 68 of the Criminal Code of the Russian Federation, it follows that it is possible to appoint less than 5 years (for LESS than 1/3), which means that 5 also cannot be appointed (error No. 2) .... Given the requirement of the Criminal Law, a minimum of 6 years can be assigned (within ). But with the use of Art. 64 of the Criminal Code of the Russian Federation may be appointed even less ...

Alina Maksimova

who understands legal cases, please tell me !. if a person has a suspended sentence, plus he stole a car, crashed it, but paid a certain amount to the owner, and he has no complaints, what will happen?

In your case, it is better to add up to Art. 61 of the Criminal Code of the Russian Federation mitigating circumstances. Also at the court to provide payment of compensation and the injured party must say that they have no claims, they can solve it peacefully, the case will be closed and there will be no criminal record.

Vladislav Krasnosivenky

murder. I beg your pardon. I didn't quite figure out what to write where. They killed a loved one. The killer was in a strong state alcoholic intoxication, after the deed confessed immediately. But now he wants to refuse his testimony, to press on the fact that it was self-defense, a state of passion, etc. The murder was not accidental. The beatings were inflicted for two hours, then, when attacked from behind, the carotid artery was cut. Currently, the killer (for some reason) is under recognizance not to leave, and not in prison. Please tell me if he can get the mitigating circumstance acknowledgment? And how can you ensure that he was given the maximum?

Lawyer's answer:
Everything here will depend on many factors. But the fact that the perpetrator was in a state of alcoholic intoxication already excludes the state of passion and states equated to it, which develop only to a sober head. If the investigator has correctly drawn up the initial testimony (all signatures, with a lawyer, etc.), then despite the refusal of these testimonies, they will be used as evidence. It is important whether his initial recognition is supported by other evidence - testimony of witnesses (best of all eyewitnesses), expert opinions (the victim's blood is on his clothes), etc. Difficulties arise with defense when the conflict goes one-on-one, but at the same time in your favor will be his initial recognition. Definitely alarming is the fact that he has been chosen such a mild measure of restraint - a subscription. This may indicate either that the case is very poor with evidence, or that the perpetrator is very well characterized (previously not convicted, many young children, registration, work). As a rule, according to Art. 105 of the Criminal Code of the Russian Federation, even according to its first part, it is precisely imprisonment that is elected. About extenuating circumstances - their list is essentially open and many can be recognized as such, see Art. 61 of the Criminal Code of the Russian Federation. If there are fears that the perpetrator will not receive his own, then advise the relatives (one of whom will be recognized as a victim in the case) to hire a lawyer. Since for The Investigative Committee it will immediately become clear that the injured party does not give a damn about the fate of the case, and if they are not satisfied with the course of the case, they will complain to all instances. Well, the position of the victims (one of the close relatives) in the case in terms of punishment is also important. So some in court say that we do not insist on severe punishment, or they leave this issue to the discretion of the court. Others, on the contrary, ask to impose the most severe punishment in the form of long real imprisonment.

Svetlana Andreeva

Theorists and practitioners are one more question to fill in. Is it possible during the hearing of the case in a special order to examine the materials and, if possible, which ones concerning the unlawful behavior of the victim?

Lawyer's answer:
of course they can, since these circumstances are taken into account by the court not when qualifying a crime, but when imposing a punishment. p. h. 1 tbsp. 61 of the Criminal Code of the Russian Federation. Firstly, the defense has the right to point out these circumstances, and secondly, the Court must assess them accordingly in the Sentence when imposing a sentence.

Anastasia Shcherbakova

Need help!. If a person is convicted under part 3 of article 30, part 4 of article 158, paragraph b, with the presence of articles 70. 61. 64, is there any point in writing a petition for the application of the amendments issued on December 7, 2011?

Lawyer's answer:
You write that a person was convicted for theft on an especially large scale with mitigating circumstances, as well as for attempted crime (however, it is not clear which one), and the punishment was imposed on a cumulative basis of sentences below the lower limit. Then it makes sense for you to write a petition. A person has committed a crime classified by the Criminal Code of the Russian Federation as a serious one. New amendments supplemented Art. 15 of the Criminal Code of the Russian Federation, paragraph six, in accordance with which the court has the right, in the presence of mitigating circumstances, to change the category of crime from grave to medium gravity. And in the event of a change in the category, the order of addition of punishments also changes, since now, in accordance with Art. 69 of the Criminal Code of the Russian Federation, the final punishment can be imposed by absorbing a less severe punishment by a more severe one. In addition, new amendments by supplementing subparagraph a of paragraph 1 of Art. 61 of the Criminal Code of the Russian Federation recognized as a mitigating circumstance for the first time to commit a crime of average gravity as a result of a coincidence, and this is another mitigating circumstance if the court changes the category of the crime. Thus, if you manage to change the category of the crime, then you can significantly reduce the term. Good luck.

Alla Borisova

Please check the solution to the problem on the theory of sentencing, because I doubt the correctness .. Task: Smirnova was convicted of attempted theft (part 3 of article 30, part 1 of article 158 of the Criminal Code of the Russian Federation) to 1 year in prison. Smirnova at night on the playground of a residential building took off the pillowcase and nightgown from the clothesline, but was detained. Smirnova committed a crime for the first time; from her actions material damage the victim is not inflicted; she has two dependent children, who are raised and supported by one; positively characterized at the place of work and residence. At the hearing, Smirnova admitted guilt in full, apologized to the victim; named the reason for the crime - lack of funds, need. Assignment: describe the algorithm for assigning punishment in this case; establish the mistakes made by the court when sentencing; Determine the type and amount of possible punishment, as well as the procedure for the execution of the court sentence. Decision Since all the circumstances (positive characteristics, repentance, etc.) indicate that the court will have to postpone it when imposing a sentence of imprisonment in accordance with Part 1 of Art. 82 of the Criminal Code of the Russian Federation (as a woman raising a minor child alone), I think it would be wiser to impose punishment on Smirnova according to the rules of Art. 64 of the Criminal Code of the Russian Federation (according to which, in the presence of exceptional circumstances 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 social danger of the crime, the punishment can be imposed below the lower limit provided for the corresponding article of the Special Part of the Code, or the court may impose a milder type of punishment than provided for by this article), taking into account the financial situation of the accused, namely, a fine of 2.5 thousand rubles by virtue of article 46 of the Criminal Code of the Russian Federation. Only I did not understand how to describe the algorithm for assigning punishment in this case, please tell me, dear lawyers!

Lawyer's answer:

Lyudmila Konovalova
Art. 316 of the Criminal Code of the Russian Federation (unpromised concealment of a particularly grave crime - up to 2 years). About the situation when the villain breaks down the door of your apartment and enters it. It all depends on what you feared and whether the threat of a crime against you was real. Many conditions are necessary for qualifying you to kill another person when you exceed the limits of necessary defense, but if a person broke into an apartment, entered, but did nothing else, then why should he be killed immediately? Self-defense - strife for self-defense. Your actions can also be qualified as intentional infliction of death on another person (murder) in the presence of an extenuating circumstance in the form of the unlawful behavior of the victim, which was the reason for the commission of a crime (clause "h", part 1 of article 61 of the Criminal Code of the Russian Federation). In addition, most of the murderers, when transferring the case to the court as an acquittal, builds a line of defense, indicating that he was defending himself against the victim, and therefore, in the absence of witnesses, bodily harm to the murderer, etc., the court will be critical of the testimony the guilty person and will be convicted of murder. See. When deciding whether there has been an excess of the limits of necessary defense, one should not mechanically proceed from the requirement of proportionality of the means of protection and means of encroachment, but, as noted in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the USSR "On the application by courts of legislation ensuring the right on the necessary defense against socially dangerous encroachments "of August 16, 1984, it is necessary to take into account" the nature of the danger threatening the defender, his strength and ability to repel the encroachment, as well as all other circumstances that could affect the real balance of forces of the encroached and defended (the number attackers and defenders, their age, physical development, the presence of weapons, the place and time of the encroachment, etc.). When an encroachment is committed by a group of persons, the defender has the right to apply to any of the attackers such protection measures that are determined by the danger and nature of the actions of the entire group. " The actions of the defender cannot be considered as committed in excess of the limits of necessary defense and in the case when the harm caused by him turned out to be greater than the harm prevented and that which was sufficient to prevent the attack, unless there was an obvious discrepancy between the defense and the nature and danger of the encroachment. " BVS RF, 1993, No. 5, pp. 13 - 14.
tell me they accuse me of burglary according to art. 158 p. 3; hello tell me I'm accused of burglary under article 158 p3 burglary on 23500 in theft confessed part of the stolen returned and part sold I would like to know better before the trial to the victim to reimburse part of the money or how! thanks!
- Lawyer's answer:
  That's just part 3 of Art. 158 of the Criminal Code of the Russian Federation is a grave crime (otherwise the previous defendant believes the opposite) and it is impossible to terminate the case for reconciliation of the parties. But in any case with a living victim (meaning neither for murders, where one of the relatives is recognized), and especially for selfish, property crimes - compensation for damage is a very good mitigating circumstance, directly provided for in Art. 61 of the Criminal Code of the Russian Federation. And from the position of the victim (to a greater extent) your term will obviously depend, real or conditional. Now, about compensation - it is obligatory to compensate BEFORE the court, or at least right before the first hearing, since the court always asks questions about whether the damage was compensated voluntarily and whether an apology was made. And the babble of the accused, like "Well, I haven't paid yet, I wanted the court to oblige me to do this," and so on. They make the judges very angry. The excuses are just as bad, like he could not find the victim, etc. (except for the cases when the victim does not want to take anything, but wants only severe punishment, this also happens in practice). So compensate before the court, take a receipt from him that he received such and such an amount from such-and-such as compensation for damage from theft, I have no complaints. It will be very good if he later comes to court and confirms compensation there and that he does not insist on severe punishment + in the debate of the parties he can express a position on the measure of punishment - which is not related to real imprisonment.

Denis Karpikov

and what do extenuating and aggravating circumstances mean?

Lawyer's answer:
Mitigating circumstances are recognized: a) commission of a crime of small gravity for the first time as a result of a coincidence (clause "a", part 1, article 61 of the Criminal Code of the Russian Federation); Minor crimes in accordance with Art. 15 of the Criminal Code of the Russian Federation includes intentional and reckless crimes for which the maximum punishment provided for by the Criminal Code does not exceed two years in prison. The commission of a crime of little gravity is a mitigating circumstance if it was committed for the first time. b) the minority of the perpetrator (clause "b", part 1, article 61 of the Criminal Code of the Russian Federation); Emulating this circumstance, the legislator takes into account that rarely minors, due to their insufficient social maturity, are not able to correctly understand the danger of the crime they have committed. c) pregnancy (clause "c" part 1 of article 61 of the Criminal Code of the Russian Federation); In this case, it is taken into account that the state of pregnancy entails some functional changes in the woman's body and affects her psyche. d) the presence of young children at the guilty party (clause "d", part 1, article 61 of the Criminal Code of the Russian Federation); The recognition of this circumstance as mitigating is due to the desire of the legislator to take into account the interests of the family of the guilty person, in particular the interests of the physical and moral development of his young children. e) the commission of a crime due to a combination of difficult life circumstances or on the basis of compassion (clause "d", part 1, article 61 of the Criminal Code of the Russian Federation); A variety of personal-family or service-personal circumstances can be recognized as difficult life circumstances: the death of a loved one, which caused a sharp deterioration in the financial situation of a person; his illness or illness of a child, spouse or other persons close to him; job loss, etc. f) the commission of a crime as a result of physical or mental coercion or by virtue of material, service or other dependence (clause "e", part 1, article 61 of the Criminal Code of the Russian Federation); Coercion is understood as a mental impact exerted on the guilty person in order to force him to commit a crime. The material is understood as the dependence of the guilty person, who is dependent on him, lives in his area, does not have property, etc. Service dependence is based on the subordination of the culprit at work to a superior official(worker - to the head of the shop, etc.). Other dependence can arise in a variety of situations (for example, the dependence of a witness or a person under investigation on an investigator, etc.) g) the commission of a crime in violation of the conditions of the lawfulness of necessary defense, detention of a person who committed a crime, extreme necessity, reasonable risk, execution of an order or order (clause "g", part 1 of article 61 of the Criminal Code of the Russian Federation); This circumstance, subject to all the conditions established in the criminal law, excludes the criminality of the act (Articles 37, 38, 39, 41, 42 of the Criminal Code of the Russian Federation). In those cases where such conditions are not met, the person is responsible, nevertheless, the presence of the situation of necessary defense itself serves as a basis for mitigating the punishment. h) the unlawfulness or immorality of the victim's behavior, which was the reason for the crime (clause "h", part 1, article 61 of the Criminal Code of the Russian Federation); The condition for such mitigation is that the behavior of the victim who provoked the crime must necessarily be either illegal or immoral. Illegal conduct violates any legal regulations(criminal law, administrative law, civil law, etc.), while immoral ones are moral norms (ethics) and rules of behavior in society. i) a confession, active assistance in solving a crime, exposing other accomplices in a crime and searching for property obtained as a result of a crime (clauses "and" part 1 of article 61 of the Criminal Code of the Russian Federation); These circumstances refer to the varieties of the so-called positive behavior after the crime, indicating a significant reduction in the danger of the person who committed the crime. j) provision of medical and other assistance to the victim immediately after the commission of a crime, voluntary compensation for property

- Lawyer's answer:
  Mitigating circumstances can not be for every Art. various! Mitigating circumstances are spelled out in Art. 61 of the Criminal Code of the Russian Federation: Article 61. Circumstances mitigating punishment 1. Mitigating circumstances are recognized: a) commission of a crime of small gravity for the first time due to a coincidence of circumstances; b) the minority of the perpetrator; c) pregnancy; d) the guilty party has young children; e) the commission of a crime due to a combination of difficult life circumstances or on the basis of compassion; f) commission of a crime as a result of physical or mental coercion or due to material, service or other dependence; g) the commission of a crime in violation of the conditions of lawfulness of necessary defense, detention of a person who committed a crime, extreme necessity, reasonable risk, execution of an order or instruction; h) unlawfulness or immorality of the victim's behavior, which was the reason for the crime; i) surrender, active assistance in solving a crime, exposing other accomplices in a crime and 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 the crime, voluntary compensation for property damage and moral damage caused as a result of the crime, other actions aimed at redressing the harm caused to the victim. 2. When imposing a punishment, circumstances that are not provided for in the first part of this article may also be taken into account as mitigating. 3. If a mitigating 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 re-taken into account when imposing a punishment.