Criminal law uses the concept of the age of criminal responsibility. This is the minimum age at which the subject can be punished for the crime.
Before we consider the types of punishments and the peculiarities of their imposition to minors, it should be noted that in Russia it is possible to
bring to justice under the Criminal Code from 16, and for especially grave acts - from 14 years. Meanwhile, persons who have reached this age are minors. Adulthood comes, according to general rules, from the age of 18.
General information
The specifics of sentencing minors are not only determined by the provisions of Article 89 of the Criminal Code, but also follow from other criminal law norms and judicial practice.
The sanction imputed to a person must be within the limits of punishment according to the relevant norm of the Special Part of the Code. According to the first part of Art. 89, in addition to the general principles provided for in Article 60, the following shall be taken into account when assigning punishment to a minor :
- level of mental development and other individual characteristics;
- conditions of education and life;
- the effect on him of adults.
In addition, the provisions of the General Part provide for restrictions on the types and amounts of sanctions, the possibility of reducing the punishment for an unfinished crime, extenuating circumstances enshrined in paragraphs "and" and "to" of paragraph 1 of Article 61. All this is also taken into account when sentencing minors. The Resolution of the Plenum of the Armed Forces No. 40 of June 11, 1999 contains a direct indication of the need for a clear implementation of the requirements of the law.
Strict sanctions
Having regard to the provisions of Article 60 of the Criminal Code, when sentencing minors, the court should choose a stricter sanction only when the application of less stringent measures does not allow to achieve the goals of justice.
The Plenum of the Armed Forces, developing these provisions in Decree No. 7 of 02/14/2000, requires lower courts to consider the possibility of imposing sanctions not related to imprisonment when considering cases.
The court can make decisions on sentencing minors in the form of deprivation of liberty only in the case when correction of persons is impossible without isolating them from society. In the sentence, of course, the opinion of the court should be motivated.
Limits of sentencing minors
As established by the second part of Article 60 of the Criminal Code, a tougher measure than provided for in the norms of the Special Part of the Code can be applied only by the totality of acts or sentences. At the same time, it should be borne in mind that the limit of the final sanction cannot be greater than the maximum term of each sentence provided for minors.
For example, to impose a sentence of imprisonment to persons who have committed crimes at the age of 14-16 years, its maximum size cannot 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 old - a serious and especially serious one, they cannot be sentenced to imprisonment for a term of more than 10 years.
Going beyond the lower sentence of the relevant norm can be caused either by the low threshold provided for a minor in a particular crime, or by the possibility of imposing a sentence on a minor below the minimum limit in accordance with Article 64 of the Code.
Public danger
Her degree and nature are necessarily taken into account when sentencing minors. The court should evaluate:
- category of act;
- size and nature of the harm done;
- form of guilt;
- the occurrence of consequences not specified in the legislation;
- the role and nature of participation in a crime committed as part of a group.
In addition, the following are taken into account:
- characteristics from the place of study / work of the perpetrator;
- the presence of the commission of acts or offenses in the past;
- combination of work and study;
- the presence of dependents (elderly or sick parents, etc.);
- use of drugs or alcohol.
Mitigating circumstances when sentencing minors
Their list may be expanded, while the list of aggravating circumstances enshrined in Art. 63 of the Criminal Code, is considered exhaustive.
First of all, mitigating factors cited in Article 61 of the Code include the failure to reach the age of 18 years for the perpetrators. In accordance with part 2 of article 89 of the Criminal Code, when sentencing minors, this fact should be taken into account, along with other mitigating and aggravating circumstances.
The court must take into account the effect of the sanction on the possibility of correcting the guilty party and on the conditions in which his family lives. In this regard, the punishment should not violate the process of getting a minor a professional or general (secondary) education, significantly worsen the situation of his dependents, create obstacles to his medical rehabilitation, and so on.
Education and life conditions
They also determine the specifics of sentencing minors . When considering a case, the court must take into account the following facts:
- With whom the teenager lives - with parents, has his own family or lives alone.
- Living conditions, adequate housing, compliance with sanitary and other standards, the general condition of the premises, the availability of opportunities to study, etc.
- Family income.
- Full family or not (brought up by father or mother, parents are deprived of their rights, both parents are involved in education).
- Influence of parents (negative or positive).
- Did you attend a minor school, college, university; what is his academic performance.
- The teenager worked or not.
In addition, the court is examining whether the teenager was involved in the use of alcohol and drugs, and if his rights were violated during the privatization / exchange of housing.
Mental development
Considering the ownership of sentencing minors , attention should be paid to assessing the level of mental development of a teenager.
His accounting is aimed at determining the conformity of the intellectual development (social age) of a person with his physiological development. Let's 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, when committing the act, he did not fully realize the social danger and the actual nature of his behavioral acts and could not direct them. Moreover, the lag should not be associated with a mental disorder.
In this circumstance, there is no medical sign. In this, it differs from insanity.
The reason why a teenager is not aware of the danger of his behavior and does not lead him can be social infantility due to improper upbringing, non-attendance at school, detention indoors, etc.
Determining the level of mental development is carried out in the framework of psychological and psychiatric examination.
When sentencing a minor, the court must take into account other disorders not related to the disease. For example, it can be increased excitability, temper, hypertrophic perception of reality, youthful maximalism, and so on.
Adult influence
When assigning criminal punishment to minors, it can be taken into account in 2 aspects.
The influence of adults can be associated with the unlawful behavior of a teenager (for example, involvement in a committed act), and with the possibility of senior persons to negatively affect a minor in the process of executing a court sentence.
For example, parents abuse alcohol, systematically allow humiliation of the dignity and honor of a teenager, contain a stash. If the court, having examined the case, concludes that the minor can improve without isolation from society, then it is advisable to resolve the issue of deprivation of adult parental rights. In such a situation, as a rule, a teenager is supervised by a specialized institution or other similar measures are taken.
Adult Acts
As indicated in the Decision of the Plenum of the Supreme Court No. 7, when considering such cases, the courts should ascertain the nature of the relationship between the teenager and senior persons, their role in the crime. If there are grounds, the authorities should hold adults accountable for involving the teenager in unlawful acts.
As a mitigating circumstance, the court may consider the provocative and illegal behavior of senior persons (including victims), preceding the crime.
In the above resolution, the Plenum explains that in the practice of sentencing minors , the provisions of paragraph “e” of part 1 of article 61 of the Criminal Code should be taken into account. It indicates that among the mitigating factors include mental or physical coercion, material, service or other dependence. In this regard, the courts, when establishing the fact of involving a teenager in a crime by adults, are recommended to assess the nature of the coercion applied to a minor.
At the same time, the authorities must determine that the addiction or pressure did take place, and the criminal actions of the teenager were forced, since his will was suppressed by the unlawful behavior of an older person who involved the guilty person in the crime.
If the coercion was exclusively physical and insurmountable, depriving the minor of the ability to control his actions, then it, within the meaning of paragraph 1 of article 41 of the Criminal Code, can be regarded by the court as a factor excluding the crime of the act.
Sanction Rules
The courts have established a specific procedure for sentencing minors. The algorithm is used in cases of unfinished crimes, in the presence of extenuating factors, as well as in cases of jury verdict of leniency.
Features of the appointment of criminal punishment for minors are as follows:
- Initially, the court should reduce the maximum and, if necessary, the minimum amount of the sanction according to the relevant norm of the Special Part to the limit (minimum) values established by Article 88 of the Criminal Code.
- The punishment received is halved in the case of preparation for a crime and by 1/4 in the attempted assassination or in the presence of extenuating factors enshrined in paragraphs "and" and "k" of part 1 of article 61 of the Code. If at the same time signs of an unfinished deed or enshrined in Art. 62, the sanction for an unfinished crime is first determined, and then its size is reduced by at least 1/4.
- In jury trials that have passed a verdict of leniency, the punishment received as a result of the above operations is reduced by at least 1/3.
- After that, the court selects the optimal size of the sanction, which is within the minimum and maximum limits of the amount obtained.
If, when imposing a criminal sentence on a minor, the court concludes that the amount of the sanction obtained as a result of the above operations is too strict, it can impose either a milder form of punishment (under Article 64 of the Criminal Code) or a sanction below the minimum limit. The latter is allowed if the threshold fixed by Article 88 has not been reached with a decrease in the minimum border.
Relapse and set of acts
In these cases, special rules apply when sentencing juveniles.
Relapse is formed only if there is a criminal record for the acts committed by an adult. In this regard, the rules of article 69 of the Criminal Code on strengthening penalties cannot be applied to a teenager.
If a person has committed two or more crimes and has not been convicted of any of them, the court, taking into account the above rules, shall appoint a punishment for each act that forms the totality. After that, the final amount of the sanction is determined.
If the aggregate is formed by acts of moderate or minor gravity, the court may apply the method of partial and complete addition of sentences. If at least one crime of the category of grave or especially grave is present in it, the final sanction is determined by either 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 sentence, in turn, cannot be greater than the maximum limit prescribed for the corresponding type of sanctions established for minors. For instance:
- the duration of correctional work should not be more than a year;
- arrest - 4 months;
- imprisonment - 6 years for people 14-16 years old and 10 for citizens 16-18 years old.
In the second case, it is forbidden to increase by more than 1.5 times the maximum sentence in the form of imprisonment, provided for in the corresponding article of the Special Part.
Nuances
Certain problems of sentencing juveniles arise when considering cases of crimes, some of which were committed by a subject aged 14-16, and the rest from 16 to 18 years.
In such situations, you should:
- impose a sanction for each act separately;
- determine the final sizes and terms of the aggregate for each individual group of crimes (committed in 14-16 and 16-18 liters.);
- summarize the punishment.
Please note that in this case the maximum term of imprisonment cannot be more than 10 years.
As the Plenum of the Armed Forces in Decree No. 7 explains, when imposing a sentence on the aggregate of acts, some of which were committed by a person in his teens, 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 - in the second group.
Final punishment shall be determined in accordance with rules 69 of the Code. At the same time, its size should be established in the manner prescribed for adults. The court, therefore, if there is a reason, has the right to impose a sanction in the form of imprisonment for a term exceeding 10 years.
In a similar manner, the issue of determining the maximum terms for the appointment of a combination of sentences is being resolved . Moreover, as explained by the Plenum of the Armed Forces in the Decree No. 40 of 06/11/1999, the final sanction should be stricter than the most severe punishment imputed for any act included in the aggregate.
Responsibility for harm
Clarifications on this issue are contained in the Resolution of the Plenum of the Armed Forces No. 7. As indicated in the document, minors 14-18 years of age are liable for damage caused in accordance with Article 1074 of the Civil Code independently. If the adolescent does not have income or property sufficient to compensate for the harm, parents bear it in whole or in part (in the missing part). In this regard, the courts must first decide on the compensation for damage by the perpetrators themselves.
As regards non-pecuniary damage, according to the provisions of Art. 1974 CC, it is subject to compensation directly by the causer. Only when property is insufficient is additional responsibility placed on the legal representatives of the minor, if they do not prove the absence of their guilt in the occurrence of damage. These entities include, in addition to parents, guardians, adoptive parents, adoptive fathers / mothers, an institution providing guardianship over a teenager.
The amount of compensation for sentencing a minor is determined taking into account the nature of the victim's suffering (moral and physical), the degree of guilt of the teenager and the persons under whose supervision he is, the property status of the guilty person and other circumstances that deserve attention.
Conditional conviction
If the court charged the minor with imprisonment of no more than 8 years or corrective labor, the question of the possibility of replacing this punishment with a conditional should be discussed.
Upon his appointment, the instance may assign to the guilty party the obligations set forth in paragraph 5 of Article 73 of the Criminal Code, as well as others not fixed in the norm. The latter, in particular, include the imputation of the obligation to return to an educational institution, to continue training, and so on. In this case, specific circumstances of the case, the identity of the perpetrator, the features of his behavior in the family, etc.
As the Plenum of the Armed Forces indicated in Resolution No. 40, if a court decides to impose a suspended sentence on a person who committed 2 or more acts, the decision should not be made for each of them individually, but for their totality when the final sanction is imposed. If the guilty party is charged with primary and secondary punishment, only the first may be considered conditional. Additional sanction is subject to real application.
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As explained by the Plenum of the Armed Forces in the Decree No. 40, the fulfillment of prohibited actions or non-fulfillment of orders more than two times during the year, as well as long-term (more than a month) non-fulfillment of the duties assigned to the convicted person, should be considered systematic. Maliciousness is understood to mean a case of non-fulfillment of instructions after a warning issued in writing to the convict by the supervisory authority about the inadmissibility of the repeated commission of a violation, or when a person has disappeared from control.