Circumstances mitigating and aggravating punishment reduce or increase the nature and degree of public danger of a particular act and the person who committed it. What follows from this? First of all, the circumstances mitigating and aggravating the punishment must be taken into account by the court when passing the sentence.
General information
The complexity is represented by mitigating and aggravating circumstances that are beyond the time limits of the assault. Some of them characterize the degree of danger of the individual. In this regard, there are grounds for registration by the court. The other part does not characterize the level of danger of either the guilty person or, in fact, his actions. However, they are also subject to accounting and influence the sentence, for humane reasons.
Classification
Circumstances that could in any way influence the punishment are divided into two categories:
- Signs of corpus delicti.
- Means of individualization of responsibility.
The first category is quite heterogeneous in composition. Some features make it possible to define a new legal framework for punishability and are called "qualifying." Circumstances mitigating and aggravating responsibility are categorized as “means of individualization”. They do not serve as signs of an offense. Such circumstances also do not affect the recognition of the act as criminal and punishable.
General definitions
It should be noted that, in addition to aggravating and mitigating circumstances characterizing the act and the person who committed it, there are others with a similar property. The court takes into account the latter to the extent that they determine the level of danger of the offense and disclose the personal qualities of the guilty subject. Aggravating / mitigating circumstances, as well as others, can influence the choice of punishment. For example, it may be directly the fact of committing a crime while intoxicated. Summarizing the above, it can be determined that aggravating and mitigating circumstances should be recognized as those that relate to the offense or (and) the person under investigation, are endowed with the ability to significantly strengthen or weaken the punishment, due to their significant influence on the degree of public danger of the guilty and the wrongful act committed by him, or by virtue of the requirements of the humanistic principle. 
Important point
Often any aggravating circumstances present in the list of Art. 61 or 63 of the Code of Criminal Procedure are mentioned in the disposition of the Special Part as one of the signs of the offense (qualified or basic). For example, the commission of unlawful actions in excess of the necessary defense by a group of persons. In Art. 61 (part 3) and Art. 63 (part 2) emphasizes that a circumstance of this kind cannot be taken into account again by the court when sentencing. In this case, you should clearly understand the nuance. Such a circumstance in itself should not and cannot be taken into account, and its specific content - yes, with reference to a lesser or greater degree of danger that the crime and the offender pose to society.
The list of factors enhancing the consequences of the offense
In the Criminal Code, aggravating circumstances are given in full and accurate form. The list has a binding function.On the basis of it, the court must determine all the circumstances that are present in a particular case from the ones listed, fix them in the verdict and take into account in the process of sentencing.
The onset of grave consequences
The question of determining the severity cannot be resolved without taking into account all the circumstances of the crime. In this case, the damage caused not only directly during the commission of an unlawful action, but also remote, is taken into account. With torture or libel, for example, the consequence may be the suicide of the victim. Aggravated homicide may also be committed. In this case, the consequence will be the deprivation of the breadwinner's family. In the theft, this can be expressed in disruption of the schedule or suspension of the production process, delayed payment of wages to a significant number of employees. In accordance with the law, aggravating circumstances of criminal punishment are only visible if there is a real onset of serious consequences.
Group participation
In this case, illegal actions committed by a group of persons in a preliminary conspiracy are considered. In such a situation, the probability of harm is sharply increased. Under current law, all varieties of the above groups appear as aggravating circumstances of criminal punishment.
Special activity
It characterizes the degree of participation of a person in an unlawful act. It may, for example, mean that the perpetrator was the initiator, the inspirer of the crime, or the most persistently sought to obtain a result. This circumstance was previously taken into account in the framework of the paragraph above (on group participation in the offense).
Attraction to the offense
In this case, the author considers the incidence of unlawful actions by persons under the age at which responsibility under the Code of Criminal Procedure begins, suffers from mental disorders or is intoxicated. All these categories of people are united by their increased suggestibility. They are easy enough to persuade, easier to engage in unlawful action. Along with this, the organizer has the opportunity to avoid punishment by using these persons as a cover, and often as living instruments of assault.
Misconduct based on hostility or hatred
In the modern world, the building of relations between different faiths, nations and nationalities should be built on the principle of mutual respect and equality. However, there are crimes motivated by racial, political, religious, ideological, social hostility or hatred. When the idea of the inferiority of one and, accordingly, the superiority of another nation, social group and other things begins to emerge in the minds and then dominates, the ground appears for mutual hatred and enmity, extremism, interpersonal and even inter-and intra-state conflicts.
In this paragraph, which defines aggravating circumstances, it should be clarified that there are only a few facts from the above list, the presence of at least one of which will be sufficient to enhance the adverse consequences for the accused. If we consider intolerance towards members of a different race, nationality, religion, then the mere fact of establishing membership in different groups will not be enough. In this case, it matters whether there was hatred or enmity at the time of the encroachment. Consequently, it is possible that in one conflict or another the reason for it was different. For example, it can be a domestic quarrel - they did not come to a compromise in deciding on the procedure for using water supply or land.
Offense against an official or a person performing a public duty
Here we are talking about a crime committed out of revenge for the legitimate act of another person.It involves the fulfillment by a victim or his relatives of a public duty or official activity. In this regard, there is an encroachment of the criminal. Relatives of the victim may act as close persons only. These include other people whose interests and rights are not indifferent to the latter.
Misconduct against a helpless person
This category of citizens includes young children, pregnant women or people who are directly dependent on the offender. This clause defines circumstances aggravating liability, similar to facts that may act as facilitating consequences for the perpetrator. Only in this case, illegal actions are considered not of a pregnant, juvenile or other helpless person, but of the offender against them. These facts are recognized as circumstances aggravating criminal liability due to the fact that the person against whom an unlawful act is committed is not able to resist.
Particular cruelty
When committing a crime with signs of sadism, bullying, torture, the victim experiences excessive suffering that is not caused by the nature of the offense and is not its main purpose. Particular cruelty is expressed in the form of torture, torture, torture of the victim or his relatives. The essence of sadism lies in the enjoyment of the fact that someone else is suffering.
In this case, cruelty acts as an end in itself. Bullying is a behavior that seeks to humiliate a person’s dignity and honor. It can be expressed in mockery and infliction of suffering of a moral nature. Such torment may include actions such as deprivation of food for a long time, heat or drink, placing the victim in unbearable or dangerous conditions for health, and other similar manipulations. In a number of cases, these acts may result in the death of the victim. In this case, aggravated murder will take place.
Illegal action with the use of additional funds
Such means include weapons, explosives, ammunition, explosive or imitating objects, technical devices made specifically for criminal activity, radioactive and toxic compounds, drugs and other chemical and pharmacological preparations. Mental or physical coercion is also added to this list. All these tools can greatly facilitate the commission of illegal actions. In this case, the perpetrator does more harm to the victim. However, mere ownership of the above funds will not be enough. To take them for aggravating circumstances of a crime, it is necessary to prove the fact of their application during the offense.
Emergency conditions
Natural disasters (floods, fires), riots, conflicts and other phenomena that cause harm to citizens are classified as emergency situations. If there is a threat of their occurrence, people must adhere to the rules established by law, provide assistance, if necessary, in urgent work to eliminate the consequences. Such situations also greatly facilitate the commission of wrongful acts, so they act as circumstances aggravating the punishment.
Using Trust
In this case, we are talking about the conviction of someone's honesty, sincerity, decency, good faith and based on this all respect. Trust implies legal and factual circumstances. But in this paragraph only the first ones are taken into account.
Use of documents or representative form
This type of crime has recently become quite popular.Unlawful acts using documents and police uniforms are widespread. At the same time, offenders rely on submission and trust to representatives of the authorities. This greatly facilitates the commission of an unlawful act. The particular danger of such a crime lies also in the fact that the authority of state power will inevitably be affected by it.
A deliberate offense by a police officer
Criminal liability may result both in the action and inaction of the specified official. In this case, the employee is charged with abuse of authority. Along with this, there is a deliberate failure to fulfill the order of the head of the police department.
Other aggravating circumstances
Illegal actions may be repeated. Moreover, a person may be convicted of them repeatedly. In this case, relapse occurs. The Plenum of the RF Armed Forces has repeatedly pointed out the inadmissibility of alleviating the consequences without good reason for those who committed a deliberate offense and were convicted of it.
Aggravating Circumstances
Their main types include:
- Continuation of the commission of an unlawful action, despite the request from its authorized persons for its termination.
- Relapse - the commission of such an offense repeatedly, if a person has already been punished previously for a previous such action, and its validity has not expired.
- Attraction of minors.
- The commission of an offense by a group of persons.
- Crime in emergency situations.
- Offense while intoxicated.
The official, authority, judge appointing punishment, in accordance with the nature of the offense, may not recognize the circumstances as aggravating. Motivating his action, the offender can proceed from a false idea of the usefulness of his action, from the point of view of ensuring the protection of public or personal good. This may occur if you are not familiar with the relevant regulations. However, ignorance of the law will not exempt from punishment. Circumstances aggravating administrative responsibility are inaction or actions of the offender (legal entity / individual), which can increase the consequences of misconduct that have a public danger. For such illegal actions guilt is characteristic in the form of direct intent, i.e., signs of intentional illegal action are revealed. It is motivated, according to the perpetrator, an act. The result may be the infliction of physical (bodily) harm to the victim, moral or property damage to the state or citizen. The offender himself is aware that his actions are contrary to both moral standards and legal requirements.
Explanation
The article, which determines the degree of guilt of violators who committed their actions as part of a group, provides for some signs qualifying aggravating circumstances depending on the level of danger of the actions of the initiator, organizer, executor and other accomplice. In some cases, differences can be found in the analysis of these factors. For example, involving a minor may imply a different degree of danger to the person who organized the unlawful action or directed it. The facts cited in Part 1 of Art. 4.3 of the Code of Administrative Offenses are not recognized as aggravating circumstances if they are indicated as a sign that directly qualifies the offense itself.
