Mitigating circumstances in criminal law: Some problematic issues
Authors:   Kemerovo State University, Chernenko Tamara G. 
Published: October 2024

In the doctrine of criminal law, there has not been an equable understanding of circumstances mitigating punishment, their legal nature, and functional purpose. The author believes that the current name of a mitigating situation in the Criminal Code of the Russian Federation as a situation mitigating only punishment does not reflect its purpose, since these situations are taken into account by the court when choosing other forms of criminal liability. The conclusion about the need to designate these circumstances as circumstances mitigating criminal liability is substantiated. The following definitions are proposed: "Circumstances that reduce criminal liability are factors that reduce the degree of public danger of a crime and (or) the identity of the perpetrator and, thus, affect the mitigation of responsibility by differentiating or individualizing it, or the impact on criminal liability is due to humanistic considerations". The author believes that circumstances mitigating punishment are provided both as elements of a crime and as circumstances outside the scope of the crime provided for in the list of mitigating circumstances (Article 61 of the Criminal Code of the Russian Federation). What both of these groups of mitigating circumstances have in common is that they influence liability in the direction of mitigating it. However, the functional significance of the circumstances provided for in specific crimes and those outside the crimes is different. Mitigation of the situation, which is provided as a sign of a crime, is a means of delineating criminal liability, and the most common form of its implementation is criminal punishment. The functional purpose of mitigating the consequences of situations that go beyond the derivatives of the element of crime is to facilitate the individualization of punishment for the person who committed the crime. The theory of criminal law vaguely evaluates the rules of sentencing, which are included in article 62 of the Criminal Code of the Russian Federation, in the presence of certain mitigating circumstances. The article criticizes the position of researchers who believe that the mitigation of punishment provided for in Article 62 of the Criminal Code of the Russian Federation has not been carried out sufficiently. The author considers inappropriate to extend the norm of part 1 of Article 62 of the Criminal Code of the Russian Federation to all circumstances of mitigating and exclude an indication of the absence of aggravating circumstances. The author believes that the prescription of part 4 of Article 62 of the Criminal Code of the Russian Federation, regulating the imposition of punishment in the presence of pre-trial cooperation agreements, does not correspond to the nature and degree of public danger of the crime, in which the punishment in the form of death penalty and life imprisonment are unjustifiably lenient. In the author's opinion, it would be sufficient to prohibit the use of the death penalty and life imprisonment in the presence of pre-trial cooperation agreements. Excessive liberalization of special rules aimed at mitigating punishment contradicts the principle of sentencing and the goals facing criminal punishment.