Criminal-legal significance of minority of the injured as an aggravating circumstance

Severskii Georgii Yurievich Postgraduate student of the Department of Criminal Law and Criminology, Kuban State University 350000, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 ferzcrew@rambler.ru

The victim's infancy, due to its specific features, excludes the possibility of fully resisting the subject committing the crime. This justifies the inability to implement the proper level of protection of the victim, on the one hand, and facilitating the process of committing a criminal offense, on the other. The attribution of the victim's infancy to the number of circumstances aggravating the punishment is dictated by the special danger of the person committing such an encroachment, his inhumanity, the baseness of the motives that encourage him to commit a crime. The current criminal legislation, among the independent circumstances aggravating the punishment, provided for the age of the victim as a legally significant property of the individual.

As V.B. Khatuev rightly notes, speaking about the expediency of "deeply humane care of the state for the criminal protection of these persons", the category of victims in question requires enhanced protection by criminal legal means ^{[1, p. 3-5]}. A similar position is held by L.V. Lobanova and D.V. Davtyan, pointing out that criminal law is not alien to caring for particularly weak members of society, because it is designed to ensure human security. It cannot but spend its inherent funds to protect those who, due to their special qualities, are most vulnerable to socially dangerous encroachments ^{[2, p. 16-18]}.

It should be noted that in the Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation) and in the acts of the Supreme Court of the Russian Federation there is no definition of the concept in question. Characterizing the age of the victim as an aggravating circumstance in the current domestic criminal legislation, it is necessary to highlight a feature arising from the content of Part 1 of Article 87 of the Criminal Code of the Russian Federation: a person aged from fourteen to eighteen years is recognized as a minor. Based on this establishment, it can be concluded that a person under the age of fourteen should be recognized as a minor.

Representatives of the doctrine in scientific works also note that persons under the age of fourteen are recognized as minors in criminal law ^{[3, p. 3-9; 4, p. 13]}. The legislator made a conscious attempt to differentiate these age groups when constructing the norms of the Criminal Code of the Russian Federation in 1996, which led to the differentiation of the status of a minor and a minor victim. At the same time, it should be noted that the absence in Part 1 of Article 87 of the Criminal Code of the Russian Federation of explanations that this norm is applicable not only when characterizing the age of the subject of the crime, as well as the lawmaker's inconstancy in using the qualifying circumstance "a person under the age of fourteen" together with the sign "minor" lead to a very precarious position of the minor victim.

I believe that it is worth agreeing with the authors justifying the opinion on the expediency of fixing the age limits of the category "juvenile" at the legislative level ^{[5, p. 7]}. Thus, the age of children under the age of fourteen will be clearly and unambiguously fixed as subject to special criminal legal protection, the corresponding gap in the criminal law will be eliminated and fixed an additional guarantee of the implementation of its tasks. This will give an independent value to the definition of a minor as a victim of a crime, will facilitate the qualification of crimes and the imposition of punishment in the presence of the circumstances under consideration.

It should be noted that the minor age of the victim, based on the construction of paragraph "z" of Part 1 of Article 63 of the Criminal Code of the Russian Federation, does not have a completely consistent legal assessment. This leads to the fact that a number of authors attribute the sign of infancy to the criteria of helplessness of the victim ^{[6, p. 20; 7, p. 11, 17]}.

It seems necessary to emphasize that, in our opinion, the most acceptable position is to refuse to equate the victim's young age with a state of helplessness. This, in particular, follows from the meaning of paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation of 27.01.1999 No. 1 (ed. of 03.03.2015) "On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)" ^[8], which only assumes the possibility of classifying minor victims as persons in a helpless state. There is no question of the need to recognize them as such.

In view of the above, it is necessary to analyze the concepts of "infancy" and "helplessness" for their identity. Infancy as such does not always directly imply helplessness. The victim may be young in age, but not always helpless in his condition. However, situations when these two signs merge together are not excluded. The issue of determining the age segment in the period of adolescence, which can be directly recognized as a helpless age, is relevant for discussion. Psychologists say that self-consciousness is very poorly developed in a minor under the age of 7, which leads to difficulty in determining causal relationships, fragmentary definition of events in the perception of reality ^[9]. Having reached the age of 6-7 years, a minor is able to slow down some of his reactions and restrain his emotions. The level of his self-consciousness allows him to distinguish himself from the surrounding world and to carry out opposition with others ^{[10, p. 70]}.

In our opinion, the opinion of V.B. Khatuev and V.L. Chubarev on the need to distinguish two categories of juvenile victims: up to 7 years old and from 7 to 14 years old is quite justified ^{[11, p. 9; 12, p. 126-127]}. Based on the provisions of physiology and psychology, it can be concluded that a minor victim under the age of 7 does not have the opportunity to reliably realize the actions that the offender commits against him and to realize his physical protection. Due to the age of such minors, it is necessary to recognize psychophysically helpless, and victims aged 7 to 14 years – actually minors.

Proceeding from this, the established practice of recognizing a crime committed against a helpless person only on the basis of his young age does not seem to be fully justified. At the same time, typical for the modern doctrine of criminal law is the provision that infancy presupposes a state of intellectual or physical helplessness, acting essentially as its kind ^{[13, p. 278]}.

The commission of a crime against a minor as an aggravating circumstance cannot in itself be imputed to the subject of the crime only if the fact of its existence is established. When qualifying the deed, the subjective perception of the culprit of this circumstance must be established. In addition, the issue of the practice of the permissibility of double counting of the victim's infancy as a qualifying feature provided for in the disposition of the article of the criminal law, and as an aggravating circumstance, is debatable. Based on the provisions of Part 2 of Article 63 of the Criminal Code of the Russian Federation, it is not possible to simultaneously take into account the considered property of the victim as a constructive or qualifying feature of the corpus delicti and as an aggravating circumstance.

However, as jurists rightly note, the provisions of Part 2 of Article 63 of the Criminal Code of the Russian Federation are not categorical and unambiguously interpreted due to the presence of the wording "it by itself cannot be re-taken into account." The question arises in what other capacity this circumstance can be taken into account, if not by itself ^{[14, p. 155, 162; 15, p. 54]}. This justifies the expediency of excluding the wording "by itself" from the text of the criminal law.

Considering the above, we consider it possible to amend the text of Article 63 of the Criminal Code of the Russian Federation, stating it in the following wording:

"Article 63. Circumstances aggravating punishment

1. Aggravating circumstances are recognized as:

…

h) the commission of a crime against a woman who is obviously pregnant for the perpetrator, as well as against a minor, another defenseless person or a person who is dependent on the perpetrator, or against a helpless person…

2. If an aggravating circumstance is provided for by the relevant article of the Special Part of this Code as a sign of a crime, it may not be taken into account again when imposing punishment."

We believe that the proposed version of the norm will make it possible to improve the process of individualization of the punishment imposed on the guilty, and will also allow an objective assessment of the degree of public danger of what was done when the court passed a sentence. We also consider it expedient that the Supreme Court of the Russian Federation should provide explanations concerning the procedure for applying the norm in question.