Judicial Discretion in the Application of Criminal Law Norms on Mitigating Circumstances Containing Evaluative Concepts (Paragraphs “a” and “e” of Part 1 of Article 61 of the Criminal Code of the Russian Federation)

Abstract

The discretion of the judge is an inevitable phenomenon, which cannot be ignored while individualizing the punishment. One of the tools that is given to law enforcer by the legislator — is evaluative concepts.For the purpose of uniformity of judicial practice in application of criminal legal rules that contain evaluative concepts, the Plenary of the Supreme Court of Russian Federation outlines approximate limits of discretion in its resolutions.However, not all of them are explained by the Supreme Court of the Russian Federation. Therefore, there are attempts made in this article that allow to outline the boundaries of discretion in the application of paragraphs “a” and “d” of part 1 of Art. 61 of the Criminal Code of the Russian Federation, based on the analysis of scientific studies and judicial practice.The analysis of these mitigating circumstances allows to conclude that accidental coincidence of circumstances can be described as situation when the accused “turned out to be at the wrong time, in the wrong place,” as a result of which he or she inadvertently, suddenly and forcibly commits a crime.The latter characteristic usually inapplicable if there are qualifying signs of a crime or aggravating circumstances in the case.The opportunity itself that was presented for the commission of a crime cannot be considered as an accidental coincidence, rather it could be characterized as sudden intent, i.e. an unintentional and sudden crime.Difficult life circumstances should be understood as the circumstances such as personal-family difficulties or a work-personal difficulties, that forced an accused to commit a crime.