1. Penalties and other criminal law measures applied to the perpetrator of the crime must be fair, that is, to correspond to the nature and degree of the public danger of the crime, the circumstances of its commission and the identity of the perpetrator.
2. No one can be held criminally responsible twice for the same crime.
1. The commented position is a manifestation in the criminal legislation of the ethical category of justice that characterizes the relationship between certain social phenomena and categories through the prism of the interests of society, universal values, good and evil. The relationship between crime and punishment is a private relationship between deed and retribution. The correspondence between these characteristics is estimated in ethics as fairness, inconsistency - as injustice.
The considered principle covers spheres of both law-making and law enforcement. Justice is realized by the legislator in establishing and differentiating criminal responsibility (defining the range of criminal acts, types and sizes of punishments for specific crimes), and by the court in the process of individualizing responsibility and punishment.
2. The criminal-legal content of the principle of justice is based on the relevant constitutional and international legal provisions and permeates all the rules of the Criminal Code: punishment and other criminal law measures applied to the perpetrator must correspond to the gravity and specific circumstances of the crime, the personality of the perpetrator (cf. 60 of the Criminal Code).
From the provisions of the Constitution and the corresponding provisions of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it follows that justice in essence can be recognized as such only if it meets the requirements of justice and ensures an effective restoration of rights. Polyvariant opportunities to implement this principle are contained in the content of all norms of the criminal law.
3. An important condition for the fair individualization of responsibility and punishment is the correct legal assessment of the deed. The crime committed to the defendant must be qualified in strict compliance with the article (part of the article) of the Criminal Code that provides for the responsibility for the commission of this act.
In this connection, Part 2 of the article commented on fixes the rule that no one can be held criminally responsible twice for the same crime, based on the provision of Part 1 of Art. 50 of the Constitution and consistent with the norms of international law (non bis in idem). Inadmissibility of re-bringing to responsibility, in particular, the norms of art. 12, 17 of the Criminal Code (see comments on articles 12, 17).
In addition, the provisions of this principle are also implemented in the criminal procedure legislation (see clauses 4, 5, part 1, article 27, article 308 and other CCP). Thus, the incorrect application of the criminal law, the provisions of both the General and Special Parts of the Criminal Code, is one of the grounds for revoking the verdict of the court (see Article 38915 of the Code of Criminal Procedure).
A kind of misuse of criminal law is a double imputation, which, like objective imputation, in practice can concern all elements and attributes of a crime. The principle of non bis in idem, as established by the Constitution and regulated by criminal law, excludes the re-conviction and punishment of a person for the same crime, the qualification of the same criminal event under several articles of the criminal law, if the norms contained in them correlate as general and special or both as a whole and a part, as well as double consideration of the same circumstance simultaneously in the course of the qualification of the crime and in determining the type and measure of liability.
In the competitive process and the powers of the court, the preliminary qualification becomes more and more fictitious in nature (the nature of the prosecution's assumption that the assessment of the crime is erroneously overstated). An incorrect legal assessment of the deceased due to improper selection of the prevalence rules of the Criminal Code can be subdivided as follows: the qualification of the estimated signs of the crime; assessment of unified complex and cumulative crimes; qualification of socially dangerous consequences; assessment of minor acts and crimes bordering on misconduct.
Examples of double imputation (ie evaluation, qualification) are the following typical variants of it:
- Simultaneous imputation of the main and additional elements of the crime, if necessary, to resolve competition between them, as provided in Art. 17 of the Criminal Code (for example, Articles 285 and 290, Articles 285 and 305, Articles 162 and 111 of the Criminal Code);
- the imputation of the same characteristic twice - as the main (constructive) sign of a single corpus delicti and the qualifying trait of another crime (for example, self-interest when qualifying what was done under Article 162 and part 2 of Article 105 of the Criminal Code)
- the account of the same circumstances is repeated as other crimes that supplement the basic composition. For example, an assessment of the sign of penetration into a home when embezzling as an additional composition of an illegal intrusion into a dwelling (Article 139 of the Criminal Code); the imposition of offenses exceeding official authority (Article 286 of the Criminal Code), as well as falsification of evidence (Article 303 of the Criminal Code) with the involvement of a person who is knowingly innocent of criminal responsibility (Article 299 of the Criminal Code); simultaneous imputation of the evasion from fulfilling the duties of military service and forgery of documents by means of which the person evaded the service, whereas the deed is fully covered by art. 339 of the Criminal Code (see paragraph 28 of the Resolution of the Plenum of the US Armed Forces No. 3 of April 3, 2008);
- the imputation of the same circumstances as a constructive and qualifying sign of the composition, or a sign that influences the individualization of punishment (for example, taking into account the goal of concealing another crime as in assessing the act under item "to" Part 2 Article 105, and as an aggravating circumstance provided for in paragraph 1 of Article 63 of the Criminal Code of the Criminal Code, the imputation, in qualifying the act of Article 150 of the Criminal Code on the involvement of a minor in a crime, additionally as an aggravating punishment the circumstances of the sign of the commission of an act against a minor (unacceptability of this cm 3 hours and 61 hours Article Article 63 of the PC 2.....);
- the imputation, along with the resulting harm, of the intermediate consequences or stages of the act (for example, the qualification of what was done not only as a murder but also as a result of serious harm to health during the deprivation of life, the imputation of not only an attempt on a crime, but also preparations for the same crime, evaluation of the act not only as co-participation, but also as an organization of crime, etc.).
4. At the same time, the principle of justice presupposes a law-based responsibility of the subject for all committed acts, including the plurality of crimes (see Article 17 of the Criminal Code). Thus, deliberate infliction of serious harm to health, which resulted in the death of the victim through negligence (Part 4, Article 111 of the Criminal Code), and robbery, i.e. an assault with the use of violence for the purpose of stealing someone else's property, committed with causing grave harm to the health of the victim (paragraph "in" part 4 of article 162 of the Criminal Code) have different objects (health and life in one case, property and health in another ), different consequences (death and harm to health) with different mental attitudes to these consequences (a double form of guilt in one case and intentional guilt in another). These norms contain a description of different crimes, although they have a common feature - causing serious harm to health, do not correlate as part and whole: the death of the victim is not included in the signs of the robbery committed with causing serious harm to the health of the victim. The specified norms contain various, not coinciding sanctions. Consequently, causing serious harm to the health of the victim, which caused his death (a crime against life), can not absorb robbery (crime against property), as well as robbery can not absorb the infliction of serious harm to the health of the victim, which caused his death. Item in Part 4 of Art. 162 and part 4 of Art. 111 of the Criminal Code do not relate to each other as a general and special rule, and therefore the actions of those guilty of robbery, during which the victim is seriously harmed the health that caused his death, are subject to qualification for the aggregate of crimes (paragraph 21 of the Resolution of the Plenum of the US Armed Forces of December 27, 2002 No. 29).
In a particular case, the correct assessment is given to the actions of special subjects, which are due to Note, to Art. 285 and 318 of the Criminal Code by representatives of the authorities, according to the rules of an ideal set of crimes, excluding double imputations.
So, Part 3 of Art. 286 of the Criminal Code as serious consequences covers, among other things, serious harm to health, but does not provide for the onset of death as a result of its infliction, as evidenced by the sanctions of Part 3 of Art. 286 and part 4 of Art. 111 CC, the latter of which is more stringent. Thus, the encroachment on the interests of the civil service, on the rights and interests of citizens by the court is correctly qualified under Part 3 of Art. 286 of the Criminal Code. Causing serious harm to the victim, which caused his death by negligence, is qualified under Part 4 of Art. 111 CC.
5. Other norms of the General Part of the Criminal Code are directed to the implementation of the principle of justice: on the exclusion of liability (Article 37-42), on exemption from liability and punishment (Articles 75 - 86), on the specifics of the responsibility and punishment of minors (Article 87 - 96 ), other measures of a criminal-legal nature (Articles 97 -1043), as well as special rules on exemption from liability, contained in Note, to a number of articles of the Special Part of the Criminal Code.
6. The principle of justice finds the greatest application in the individualization of punishment. Thus, all sanctions of the articles of the Special Part of the Criminal Code are relatively specific or alternative. Wide limits of individualization are established in the General Part of the Criminal Code (for example, in Articles 60-62, 64-67, 73, 79-85), as well as in Part 7 of Art. 316 of the Code of Criminal Procedure (on the imposition of punishment under a special, ie simplified procedure for the trial), which, if there are certain circumstances in them, significantly mitigate the punishment or release the guilty person from punishment.
7. In pursuance of criminal law principles, including justice, in Art. 60 of the Criminal Code formulate the general principles of the appointment of punishment, which must correspond to the nature and degree of the public danger of the crime (a concept that is broader in scope than the social danger of the act), the circumstances of its commission, the identity of the perpetrator.
The nature of the public danger of a crime is determined in accordance with the law, taking into account the object of infringement, the form of guilt and the category of crime (Article 15 of the Criminal Code), and the degree of public danger of the crime - depending on the specific circumstances of the crime, in particular the extent of harm and gravity of the offense consequences, the degree of implementation of criminal intent, the manner in which the crime was committed, the role of the defendant in a crime committed in complicity, the presence of circumstances that lead to a more severe punishment in Compliant with the sanction of an article of the Criminal Code (see. Resolution of the Plenum of the US Armed Forces from 29.10.2009 number 20).
8. Justice implies interconnection with other principles, with the rule of law, the equality of citizens before the law and humanism (see comments on articles 3, 4, 6, 7). Each of the principles has a specific content, but at the same time characterizes a certain aspect of justice in criminal law, without which there can not be justice in general. So, there is no justice if the rule of law, the principle of equality of citizens before the law, the principle of humanism are violated in the administration of justice in the case. Thus, justice is a general principle of criminal law and criminal procedure relations.
9. Part 2 of the article is reproduced art. 50 of the Constitution, which makes this principle constitutional. The International Covenant on Civil and Political Rights of 16 December 1966 provides that no one shall be tried again or punished for a crime for which he has already been finally convicted or acquitted in accordance with the law and the criminal procedure law of each country (para. 7, Article 14), and the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, stipulates that no person shall be repeatedly tried or punished in criminal proceedings within the jurisdiction of the same State for a crime, for a cat This person has already been acquitted or convicted in accordance with the law of that state (Clause 1, Article 4 of Protocol No. 7 in the amended Protocol No. 11). This prohibition is a concretization of the general legal principle of justice and is aimed at ensuring legal security and legal stability, which is reflected in the criminal legislation of the United States.
However, the European Convention for the Protection of Human Rights and Fundamental Freedoms, its paragraph 2 of Art. 4 of Protocol No. 7 (as amended by Protocol No. 11), it is established that the right not to be re-brought to trial or re-punished does not preclude the re-examination of the case on the basis of the law of the state concerned, if there are information on new or newly discovered circumstances or if in the previous The proceedings involved a significant violation (that is, having a fundamental, principled character) that affected the outcome of the case. The absence of the possibility of reviewing the final judgment in connection with the fundamental violation that occurred in the course of the previous proceedings, which affected the outcome of the case, would mean that - contrary to the principle of justice and constitutional guarantees for the protection of the individual and judicial protection of human rights and freedoms based on it - such a mistaken the solution can not be fixed.
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