The issue of sentencing in criminal proceedings is one of the most difficult.
There are no identical cases; each crime is unique, if only because it is committed by different subjects with different subjective motives.
When assigning punishment, the judge is obliged to take into account all the features of what happened in order to ensure the fairness of the assignment of responsibility. The amount of punishment can vary significantly depending on aggravating and mitigating circumstances.
Mitigating circumstances (Article 61 of the Criminal Code of the Russian Federation) make it possible to attract the guilty person to the minimum possible punishment. From the article you will learn what is a mitigating circumstance in a criminal case and how they can affect the verdict.
Mitigating circumstances
Circumstances mitigating criminal liability are legal facts confirming the positive characteristics of the defendant and/or the low level of his social danger.
It is precisely because of these two key circumstances that the convicted person can receive the minimum punishment allowed 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:
- Accidentally committing a crime of minor or moderate gravity for the first time;
- The crime was committed by a minor;
- The defendant is pregnant;
- Have dependent young children;
- Committing a crime out of compassion;
- Committing a crime due to difficult life circumstances;
- The act was committed under duress;
- Committing a crime by order or by virtue of exceeding the limits of necessary defense;
- Immoral behavior of the victim;
- Turn yourself in and actively cooperate in the investigation;
- Compensation for harm or provision of medical assistance to the victim.
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 work hard. All positive characteristics from places of work or residence, certificates of high income, that he is the sole breadwinner in a family with young children, must be added to the materials of the criminal case.
The court is obliged to take into account all relevant materials in the case to impose a sentence. The sentence must include those mitigating circumstances that were taken into account by the court when imposing the punishment.
By chance and for the first time
The first option of a mitigating circumstance can be applied by the court only if all the conditions specified in it are met.
The crime must be committed for the first time, be classified as a crime of minor or medium gravity, and also be committed due to unforeseen circumstances.
So, in order to be able to say that a crime has been committed for the first time, one of the following conditions must be met:
- The defendant had not previously been convicted of the crimes committed;
- The defendant's previous sentence has not entered into legal force;
- For previously committed crimes, the statute of limitations has expired;
- Past convictions have been cleared or expunged on a general basis or through amnesty and pardon.
The fact that a crime was accidentally committed is determined in each case individually . This could be weather conditions, actions within the framework of other criminal offenses, or the commission of a crime under suggestion.
Juvenile subject of crime
A person who has not achieved full legal capacity is considered to be completely unaware of the actions he is committing.
It is easier to manipulate a teenager, he does not know the laws, and does not realize real responsibility for his actions.
The imposition of criminal punishment for a minor is separately prescribed in Chapter. 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 this position are also not completely sane . Due to the riot of hormones, increased irritability and impressionability, they are capable of committing actions for which they will later have to repent.
Moreover, a woman, carrying a child under her heart, will do her best to protect her fetus in a dangerous situation. It is here that the limits of necessary defense are often exceeded.
A pregnant woman can even receive a deferment of execution if she submits the necessary petition to the court.
Having children
In order for children to be recognized by the court as mitigating circumstances, they must not be more than 14 years old . The presence of other relatives does not matter to the court. The fact itself is important.
According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 11, 2007, the presence of children cannot be recognized as a mitigating factor in the following situations:
- The defendant committed a criminal act against his own child;
- The defendant committed a crime against an adopted child or a child under his or her 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 the crime. The investigative base is important here.
Employees of the inquiry and investigation must be sure that compassion or a difficult situation served as a motive, and not as an instrument for concealing a crime.
Difficult life circumstances can arise in a situation where a person, in the absence of money for subsistence, steals food, falsifies documents in order to obtain rights and privileges guaranteed to him.
The motive of compassion can be used when committing a crime in the form of euthanasia of a seriously ill person.
Often, wanting to alleviate the suffering of a loved one, people commit legal murder by helping the patient die with medication.
Coercion to crime
Compulsion to commit a crime as a mitigating circumstance can occur in the following forms:
- Physical coercion;
- Mental coercion;
- Committing a crime due to financial or official dependence.
In such a situation, it is important for the investigation to prove that the defendant could not resist coercion on his own and avoid the crime.
An example of such an act could be a bank teller giving a large amount of money to a robber who threatens her with violence. 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 when there is pressure on a high-ranking employee who is forced to sign some papers, threatening him with violence.
Excess of defense or by order
This paragraph of Art. 61 of the Criminal Code of the Russian Federation may have a mitigating effect under the following circumstances:
- Violation of the conditions of necessary defense;
- When apprehending a criminal;
- If absolutely necessary and at reasonable risk;
- When executing an order or instruction.
If the fact of the legality of such actions is established, the crime may completely lose its elements, and the defendant will be acquitted.
This is especially true for orders and instructions when police officers have to shoot at criminals.
Immoral behavior of the victim
In order for the unlawful behavior of the injured party to become a basis for mitigating the defendant’s sentence, it must be recognized as truly dangerous or immoral. No one has the right to kill children for children's pranks.
In such a situation, for example, when a girl with a loudspeaker advertised a store all day, and a man shot her from the window because she was disturbing him, there can be no mitigating circumstances here.
The unlawful behavior of the victim must 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.
Assistance in investigation
This mitigating circumstance applies to all criminals who admit 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 independently turn themselves in to the police to confess. Most often, criminals confess to a crime after they are detained in order to reduce the severity of the punishment, from which it is no longer possible to wriggle out.
The entire range of mitigating circumstances in this case includes:
- Oral or written confession;
- Active assistance in the investigation and detection of crimes;
- Exposing accomplices to the crime;
- Search for property stolen during the commission of a crime.
The defendant thoroughly tells and shows the circumstances of the crime during investigative activities and interrogations.
Compensation for harm
Any attempts to make amends for the harm caused by the crime, alleviate the fate and condition of the victim, and reduce the risks of serious consequences, if committed voluntarily, can be recognized as mitigating circumstances.
An example would be a situation where a driver hits a pedestrian, after which he calls an ambulance, pays for medications during treatment and regularly visits him in the ward.
Minor age
A person who has not reached the age of full legal capacity and majority can count on receiving mitigation under certain circumstances.
A minor is easier to control and manipulate. He does not know all the current rules and laws, does not understand the real consequences of his actions.
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Arbitrage practice
In practice, in courts in 2021, 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 state prosecutor in the debate also refers to the mitigating circumstances of the defendant, while still placing greater emphasis on aggravating factors.
In general, mention of mitigation of punishment in a case always occurs within the framework of the debate between the parties.
What mitigating 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:
- The age of the defendant;
- The presence of chronic diseases in the defendant;
- No administrative violations;
- Tangible contribution to the family budget of the convict’s income;
- When considering cases of deprivation of a driver's license, the fact that the defendant drives a car far to work or is engaged in cargo transportation is mentioned.
Simply put, anything can be mentioned as a mitigation . The judge will still take into account only those circumstances that he considers significant.
They still will not have any particular impact on the imposition of punishment in the presence of mitigating circumstances.
Mitigating circumstances provide a guarantee to the defendant that his case will be considered to the fullest extent of the law, taking into account his motives and the circumstances of the case.
In fact, most of the mitigating circumstances do not have any real benefit in reducing the punishment. They act only as fiction, which is necessary to be pronounced within the framework of the debate between the parties, and to be reflected in the text of the verdict.
Woman carrying a child
A pregnant woman, for a number of reasons, may not make rational decisions. This is due to hormones, character changes and increased impressionability. Another circumstance is the fact that a woman carrying a fetus will, on a subconscious level, protect it in all possible ways.
Situations often occur with pregnant women when the limits of necessary defense are exceeded. In exceptional situations, by court decision, a pregnant woman will be granted a deferment of punishment.
Murder by excess of self-defense
The ability to stand up for your life in the event of an attack is the right of every citizen of the Russian Federation. It is enshrined constitutionally and has one “but”. In self-defense, the victim can only use those measures that are not prohibited by law.
Exceeding self-defense occurs as a result of overestimating the current situation and one’s capabilities. For example, the killing of a thief while attempting to pickpocket, or the victim killing an attacker who is much weaker than him physically.
If a physically strong and healthy man uses all his force against a pregnant woman or a teenager, he will undoubtedly exceed the permissible limit of self-defense.
The following will not be considered self-defense:
- if a person first provokes a conflict and then begins to defend himself;
- if the attacker stopped his threats and retreated, and the victim continues to attack;
- if the attempt occurs not on life and health, but on material assets; It will not be considered self-defense if the victim's cell phone was stolen and the victim responded by committing murder.
It can be very difficult to prove that the killer did not exceed the necessary measures during the attack. It is also necessary to interview witnesses who can confirm that the victim had no other choice.
Otherwise, the victim becomes the accused and is liable to the fullest extent of the law.
Types of murders
The Russian Federation guarantees each of its citizens, regardless of their age and position in society, the right to life. Criminal law is aimed at protecting and ensuring the safety of the individual.
At all times, life was considered the highest value, and deprivation of it was sometimes punished cruelly - in ancient times, a murderer was sent to the gallows or had his head cut off. Later, the electric chair became the weapon of death penalty. Nowadays, in many developed countries, the death penalty as a punishment for murder has been abolished.
There are countries where execution by firing squad is still practiced. An example would be China, where the death penalty is imposed not only for murder, but also for pimping, counterfeiting banknotes, and poaching.
Deprivation of life may have aggravating circumstances or, conversely, mitigating circumstances. Or without them at all.
Aggravating factors include factors that negatively characterize the killer and add to his punishment:
- murder of a minor;
- murder of a pregnant woman;
- deprivation of life committed with extreme cruelty;
- murder with rape;
- murder due to racial or religious hatred;
- mass kill;
- deprivation of life for the purpose of selling the organs of the deceased.
What are the mitigating circumstances for murder? For example, when a husband kills his wife’s lover or one of the family members takes the life of an alcoholic father who abuses his household. Punishment for murder under mitigating circumstances is prescribed in Articles 106-108.
Murder committed in violation of necessary measures for arrest
The arrest of the offender by the victim is considered a necessary defense and is equivalent to lawful actions when he has suffered harm equal to his resistance.
Suppression will not be considered lawful if:
- the offender did not resist;
- if his death occurred as a result of an escape attempt.
A person who has committed an attack with the intent of robbery or murder, with the aim of causing damage to health or material values, is subject to detention. If the detention process took place without these reasons, it will be considered illegal and will entail punishment for intentional deprivation of liberty.
Detention will also be considered illegal if its purpose is not to deliver the offender to the authorities, but to commit lynching over him.
Crime under duress
Mitigation of punishment is possible for the following types of coercion to commit an illegal act:
- Physical.
- Mental.
- In connection with material or service obligations.
To accept such facts, the defendant must prove in court the impossibility of resisting coercion and not committing a crime.
Illegal actions of the victim
If it is proven that the victim's actions were unlawful or immoral in relation to the suspect or other persons, such a circumstance will be accepted as a mitigating factor. Illegal actions or defiant behavior of the victim must be expressed in humiliation of the person, which has an impact on the person’s psyche.
Providing assistance to the victim
When the person who committed the illegal act made attempts to compensate for the damage caused, provide the necessary medical care, and prevent the development of serious consequences for the victim, such actions will have a mitigating nature.
