Types and features of the assignment of punishment to minors

The criminal law uses such a term as the age of criminal responsibility. This is the minimum age at which the subject can be punished for a crime. Before we consider the types of punishment and the peculiarities of their appointment to minors, it should be noted that in Russia it is possible to prosecute under the Criminal Code from 16, and for particularly serious acts - from 14 years. Meanwhile, persons who have reached the specified age are minors. Adulthood comes, under general rules, from 18 years.

General information

The specifics of the assignment of punishment to minors are not only conditioned by the provisions of Article 89 of the Criminal Code, but also stem from other criminal law norms, as well as judicial practice.

The sanction attributed to a person must be within the limits of the penalty for the relevant rule of the Special Part of the Code. According to the first part of Art. в обязательном порядке : 89, in addition to the general principles provided for in Article 60, when imposing a punishment on minors, they are compulsorily taken into account :

• Level of mental development and other individual characteristics;
• Conditions of upbringing and life;
• The influence of adults on it.

In addition, the provisions of the General Part provide for restrictions on the types and amounts of sanctions, the possibility of reducing the penalty for an unfinished crime, mitigating the circumstances specified in clauses "i" and "c" of Part 1 of Article 61. All this is also taken into account when assigning punishment to a minor. ВС № 40 от 11.06.1999 г. содержит прямое указание на необходимость четкого выполнения предписаний законодательства. Decree of the Plenum of the Armed Forces No. 40 of 11.06.1999 contains a direct indication of the need for strict compliance with the requirements of the legislation.

Severity of sanction

Taking into account the provisions of Art. 60 of the Criminal Code, when assigning punishment to minors, the court must choose a more strict sanction only if the application of less stringent measures does not allow achieving the objectives of justice.

The Plenum of the Armed Forces, developing these provisions in Resolution No. 7 of 14.02.2000, requires lower-level authorities, when considering cases, to discuss the possibility of imposing a sanction not related to imprisonment.

только в случае, когда исправление лиц невозможно без изоляции их от общества. The court can make decisions on the imposition of punishment on minors in the form of deprivation of liberty only if the correction of persons is impossible without isolating them from society. In the verdict, of course, the opinion of the court must be motivated.

Limits of assignment of punishment to minors

As established by part two of Article 60 of the Criminal Code, a more stringent measure than stipulated in the norms of the Special Part of the Code can be applied only on the totality of acts or sentences. At the same time, it should be borne in mind that the maximum size of the final sanction can not be greater than the maximum term of each penalty provided for minors.

For example, to imposition of punishment in the form of imprisonment to persons who committed crimes at the age of 14-16 liters, its maximum size can not be more than 6 years. If persons of the specified age have committed a particularly serious crime, as well as citizens of 16-18 years of age - serious and particularly serious, they can not be sentenced to imprisonment for more than 10 years.

ниже минимальной границы в соответствии с 64 статьей Кодекса. The exit for the lower amount of punishment of the corresponding norm may be conditioned either by the low threshold provided for the minor with a particular crime or by the possibility of imposing punishment on the minor below the minimum border in accordance with Article 64 of the Code.

Public danger

Her degree and character are necessarily taken into account when assigning punishment to a minor. The court must assess:

• The category of the act;
• The size and nature of the harm inflicted;
• Form of guilt;
• Occurrence of consequences not specified in the legislation;
• The role and nature of participation in a crime committed in a group.

In addition, we take into account:

• Characteristics from the place of study / work of the perpetrator;
• Presence of the fact of committing acts or offenses in the past;
• Combining work and study;
• Presence of dependents (elderly or sick parents, etc.);
• Use of drugs or alcohol.

Mitigating circumstances when assigning punishment to a minor

Their list can be expanded, while the list of aggravating circumstances, set out in Art. 63 CC, is considered to be exhaustive.

First of all, the mitigating factors given in Article 61 of the Code include the failure to reach guilty persons of 18 years of age. In accordance with Part 2 of Art. 89 of the Criminal Code, with the appointment of punishment to minors, this fact must be taken into account along with other mitigating and aggravating circumstances.

The court must take into account the impact of the sanction on the possibility of correcting the perpetrator and the conditions in which his family live. In this regard, the punishment should not violate the process of obtaining a professional or general (secondary) education for minors, significantly worsen the situation of his dependents, create obstacles to his medical rehabilitation and so on.

Conditions of upbringing and life

. They also determine the specifics of the assignment of punishment to minors . When considering a case, the court must take into account the following facts:

1. With whom the teenager lives - with parents, has his own family or lives alone.
2. Living conditions, sufficiency of living space, compliance with sanitary and other standards, the general condition of the premises, the availability of opportunities to study and so on.
3. Family income.
4. Full family or not (raised by the father or mother, the parents are deprived of the rights, both parents participate in the upbringing).
5. Influence of parents (negative or positive).
6. Did he attend a minor school, technical school, or university? What is his academic performance.
7. The teenager worked or not.

In addition, the court examines whether the adolescent was involved in the use of alcohol, drugs, whether his rights were violated during the privatization / exchange of housing.

Mental development

, внимание следует уделить вопросу оценки уровня психического развития подростка. Considering the nature of the appointment of punishment to minors , attention should be paid to the issue of assessing the level of mental development of adolescents.

Its accounting is aimed at determining the correspondence of the intellectual development (social age) of a person to his physiological development. Let us turn to the law. According to part 3 of Article 20 of the Criminal Code, a citizen lagging behind in mental development is not subject to criminal punishment if in the commission of an act he was not fully aware of the social danger and the actual nature of his behavioral acts and could not manage them. In this case, the backlog should not be associated with a mental disorder.

In this circumstance, there is no medical indication. This is different from insanity.

As a reason why a teenager does not realize the danger of his behavior and does not manage it, social infantility due to improper upbringing, non-attendance of the school, indoors, etc., can act.

The definition of the level of mental development is carried out within the framework of psycho-psychiatric examination.

суд должен принять во внимание и другие расстройства, не связанные с заболеванием. When assigning punishment to a minor, the court must take into account other disorders not related to the disease. For example, it can be increased excitability, quick temper, hypertrophied perception of reality, youthful maximalism and so on.

The influence of adults

оно может приниматься во внимание в 2-х аспектах. When assigning a criminal punishment to a minor, it can be taken into account in 2 aspects.

The influence of adults can also be related to the illegal behavior of a teenager (for example, involvement in a committed act), and with the possibility of older persons to negatively impact a minor in the process of enforcing a court verdict.

For example, parents abuse alcoholic beverages, systematically admit humiliation of the dignity and honor of a teenager, contain a hangout. If the court, having considered the case, concludes that a minor can be reformed without isolation from society, then it is expedient to resolve the issue of depriving adults of parental rights. In such a situation, as a rule, an adolescent supervises the supervision of a specialized institution or takes other similar measures.

Acts involving adults

As indicated in the Decision of the Plenum of the Armed Forces of the Armed Forces No. 7, when considering such cases, courts should ascertain the nature of the relationship between the adolescent and the senior persons, their role in the crime. If there are grounds, the authorities should bring the adults to account for the involvement of the adolescent in committing unlawful acts.

As an extenuating circumstance, a court can consider the provocative and unlawful behavior of senior citizens (victims including) preceding the crime.

следует учитывать положения п. "е" 1 части 61 статьи УК. In the above decree, the Plenum clarifies that in the practice of imposing punishments, minors should take into account the provisions of paragraph 1 (e) of part 1 of Article 61 of the Criminal Code. It indicates that mitigating factors include mental or physical coercion, material, official or other dependence. In this regard, the courts are recommended in assessing the involvement of a teenager in crime by adults assess the nature of coercion applied to a minor.

Instances at the same time must determine that the dependence or pressure did take place, and the teenager's criminal actions were forced, as his will was suppressed by the unlawful behavior of the older person who had involved the perpetrator of the crime. If the coercion was exclusively physical and irresistible, depriving the minor of the opportunity to manage his actions, then, within the meaning of Part 1 of Article 41 of the Criminal Code, it can be regarded by the court as a factor excluding the crime of the act.

Rules for imposition of sanctions

Courts have formed a certain order of assigning punishment to minors. The algorithm is used in dealing with cases of unfinished crimes, in the presence of mitigating factors, as well as in cases of making a verdict by the jury about leniency.

состоят в следующем: The specifics of the assignment of criminal punishment to minors are as follows:

1. Initially, the court should reduce the maximum and, if necessary, the minimum amount of sanction for the relevant Special Part to the maximum (minimum) values established by Article 88 of the Criminal Code.
2. The punishment received is reduced by half in case of preparation for a crime and by 1/4 when attempted or in the presence of mitigating factors, fixed by points "and" and "to" part 1 of Article 61 of the Code. If, at the same time, the signs of an unfinished deed are revealed or fixed in art. 62, the sanction for an unfinished crime is first determined, and then its size is reduced by at least 1/4.
3. In the trial of cases involving juries who have passed a verdict of indulgence, the punishment received as a result of the above operations is reduced by at least 1/3 more.
4. After this, the court selects the optimal sanction size within the limits of the minimum and maximum limits of the obtained value.

суд придет к выводу, что размер санкции, полученный в результате указанных выше операций, слишком строгий, он может вменить или более мягкий вид наказания (по ст. 64 УК), или санкцию ниже минимального предела. If, in appointing a criminal punishment to a minor, the court concludes that the amount of the sanction obtained as a result of the above operations is too strict, he can impose a more mild punishment (under Article 64 of the Criminal Code) or a sanction below the minimum limit. The latter is allowed if, when the minimum boundary was reduced, the threshold established by Article 88 was not reached.

Relapse and set of acts

In these cases, when imposing penalties for minors, special rules apply.

Relapse is formed only if there is a criminal record for the acts committed by an adult. In this connection, the rules of Article 69 of the Criminal Code on the strengthening of punishment can not be applied to a teenager.

If a person committed two or more crimes and was not convicted for any of them, the court, taking into account the above rules, appoints punishment for each act forming the aggregate. After that, the final size of the sanction is determined.

If the aggregate is formed by acts of medium or small severity, the court can apply the method of partial and complete addition of punishments. If it contains at least one crime of a grave or especially grave category, the final sanction is determined either by full or partial addition. In the first case, the maximum size (period) should not exceed the amount established for the most serious act, more than half. The final punishment, in turn, can not be more than the maximum limit provided for the relevant type of sanctions established for minors. For example:

• The duration of correctional labor should not be more than a year;
• Arrest - 4 months;
• Imprisonment - 6 years for people aged 14-16 and 10 for citizens aged 16-18.

In the second case, it is prohibited to increase more than 1.5 times the maximum amount of punishment in the form of imprisonment provided for in the relevant article of the Special Part.

Nuances

возникают при рассмотрении дел по преступлениям, часть из которых были совершены субъектом в возрасте 14-16, а остальные – с 16 до 18 лет. Certain problems of assigning punishments to minors arise in the investigation of cases of crimes, some of which were committed by the subject at the age of 14-16, and the rest - from 16 to 18 years.

In such situations, you should:

• To sanction for each act separately;
• Determine the final size and timing of the aggregate for each individual group of crimes (committed at 14-16 and 16-18 h.);
• Summarize the punishment.

It should be noted that the maximum term of imprisonment in this case can not be more than 10 years.

As the Plenum of the Supreme Council explains in Decision No. 7, when imposing a sentence on a set of acts, some of which were committed by a person in adolescence and some after 18 years, the courts must first impose sanctions for the first part of the crimes, taking into account the provisions of Article 88 of the Criminal Code, and Then - on the second group.

The final punishment is determined by the rules of the Code. At the same time, its size should be established in the manner prescribed for adults. The court, therefore, in the presence of grounds, has the right to impose a sanction in the form of imprisonment for a period exceeding 10 years.

In a similar manner, the issue of determining the maximum time limits for appointing a set of sentences is decided. At the same time, as the Plenum of the Armed Forces explains in Decision No. 40 of 11.06.1999, the final sanction must be stricter than the severest punishment imposed for any act that is part of the aggregate.

Liability for damage

Explanations on this issue are contained in the Resolution of the Plenum of the Armed Forces of the Armed Forces No. 7. As stated in the document, the minors who are responsible for the damage in accordance with Article 1074 of the Civil Code are under 14 years of age alone. If the adolescent has no income or property sufficient to compensate for the harm, the parents bear it completely or partially (in the missing part). In this regard, the courts must first resolve the issue of compensation for the perpetrators themselves.

As for moral harm, then, according to the provisions of Art. 1974 GK, it is subject to reimbursement directly by the culprit. Only if the property is insufficient, additional responsibility is placed on the legal representatives of the minor, unless they prove the absence of their guilt in the occurrence of damage. These subjects include, in addition to parents, trustees, adoptive parents, adoptive fathers / mothers, an institution that exercises custody of the adolescent.

определяется с учетом характера страданий потерпевшего (нравственных и физических), степени вины подростка и лиц, под надзором которых он находится, имущественного положения виновного и прочих обстоятельств, заслуживающих внимание. The amount of compensation for the imposition of punishment on the minor is determined taking into account the nature of the victim's suffering (moral and physical), the degree of guilt of the adolescent and the persons under his supervision, the property situation of the perpetrator and other circumstances deserving attention.

Conditional condemnation

If the court has imputed a minor to imprisonment for not more than 8 years or correctional labor, the question of the possibility of replacing this punishment with a conditional one should be discussed.

When he is appointed, the court may impose guilty obligations on the guilty as set forth in part 5 of Article 73 of the Criminal Code, as well as others that are not fixed in the norm. Among the latter, in particular, include the imputation of the obligation to return to an educational institution, to continue education and so on. In this case, the specific circumstances of the case, the identity of the guilty person, the peculiarities of his behavior in the family, etc., are taken into account.

As the Plenum of the Armed Forces indicated in Resolution No. 40, if the court decides to impose a conditional sentence on the person who committed two or more acts, the decision should not be taken on each of them individually, but on their totality in the appointment of the final sanction. If the guilty person is charged with the main and additional penalties, only the first one can be considered conditional. The additional sanction is subject to real application.

The conditional nature of conviction is determined by the fact that when appointing a court it is necessary to establish a probationary period for the perpetrator. During this period, the teenager will prove his correction. The term is differentiated depending on the size and type of punishment. It is the same for both adolescents and adults.

The duration of the conditional sentence should be:

• Not less than 6 months. And not more than 3 years, if the guilty person was charged with imprisonment up to 1 year or correctional labor;
• Not less than 6 months. And not more than 5 years, if imprisonment is appointed for a period exceeding a year.

If the subject to whom the maximum probationary period has been appointed, evades from the performance of duties or committed during it an administrative offense for which the penalty was imposed, the court is entitled to extend the established period on the basis of provisions of Part 2 74 of the Criminal Code. In this case, the authority has the right to go beyond the maximum duration of the period for not more than a year.

Systematic violations on probation

On the basis of Article 74 of the Criminal Code, upon their admission or malicious evasion of the performance of their duties, the court, on the recommendation of the body supervising the conduct of the convicted person, has the right to cancel the suspended sentence and replace it with a real sanction.

As the Plenum of the Armed Forces explained in Decision No. 40, the systematic conduct should be considered the commission of prohibited activities or the non-observance of instructions more than two times throughout the year, as well as the prolonged (more than one month) non-fulfillment of the duties imposed on the convicted person. By maliciousness is understood the case of failure to comply with instructions after a warning issued by a convicted supervisory authority in writing about the inadmissibility of a repeated violation, or when a person disappeared from control.