Chapter 6 of the new Criminal Code is devoted to circumstances excluding criminal liability. This chapter summarizes the “circumstances excluding the criminality of the act” of the previous Code with certain changes, as well as the circumstances excluding separate liability (insanity, causing harm without fault, etc.).
The circumstances excluding criminal liability in the previous Code (necessary defense, etc.) have been subject to changes, as well as new circumstances have been added. Let’s get acquainted with these regulations.
The first of the new circumstances excluding criminal liability is the “Implementation of professional duties”.
Article 37 of the Criminal Code states: “The person who caused damage to the interests protected by the criminal law during the performance of the person’s professional duties shall not be subject to criminal liability, if the requirements defined by legal acts for the implementation of those professional functions have been preserved.”
From the analysis of the article becomes clear that a person can be exempted from criminal liability only if the requirements defined by legal acts for the implementation of these professional functions have been preserved. If these requirements are not met, the person shall be subject to criminal liability on general grounds. In our opinion, the term “requirements established by legal acts” can be problematic in legal practice for specialists of a certain field. For example, it is hardly possible to regulate the professional activities of the medical field in detail at the level of legal acts. In practice, the expert’s conclusion “helps”, this, in turn, is based on the literature, not on the regulations of the legal act. Therefore, it is expected that for judicial interpretation it will be clarified whether, in the absence of precise legal regulation, for example, to what extent scientific articles, works, analyzes can replace the “requirements of the legal act” or can they replace it?
One of the next new circumstances excluding criminal liability is “Sport Risk”.
Article 38 of the Criminal Code defines:
“1. A person participating in a professional sports competition or training, who caused damage to the interests protected by the criminal law during the professional sports competition or training, shall not be subject to criminal liability, if he/she has followed the rules established for the given sport.
2. A person negligently causing death or causing serious harm to health as a result of an intentional violation of the rules of this sport shall be subject to criminal liability.
3. A person who intentionally causes damage to the interests protected by the criminal law as a result of intentionally violating the rules for this sport shall be subject to criminal liability”.
According to part 2 of the mentioned article, if the rules are intentionally violated by an athlete, then he/she is subject to criminal liability only in case of negligently causing death or serious damage to health and in case of negligently causing light or medium damage to health, the latter is exempted from criminal liability.
From the analysis of part 3, it is clear that when the rules are violated intentionally and the athlete also shows intent towards the dangerous consequences, then in all cases the person shall be subject to criminal liability on general grounds.
In our opinion, various sports competitions carry the risk of injury, and often athletes will deliberately break the rules of a given type of sport in the name of “sporting interests”. There are many cases when injured athletes are “out of competition” for months. In all cases the criminal interest in sports incidents increases unintentionally, because in each case, in order to find out whether the person who deliberately violated the rules (often it is obvious and does not raise doubts,) showed carelessness or intent in relation to the consequencesis shall be subject to examination.
One of the next new circumstances excluding criminal responsibility is “Complying with the requirements of the Law or other legal acts”.
Article 39 of the Criminal Code defines: “The person, who caused damage to the interests protected by the criminal law, and committed an act permitted by the law or other legal acts, or performed a duty imposed on him, shall not be subject to criminal liability, if the conditions for its implementation, defined by the law or other legal acts, are followed.”
We do believe that the effectiveness of this article will also be demonstrated by the legal practice, because one way or the other, no liability can arise in case of legal behavior. On the other hand, the question is how legal behavior can harm the interests protected by criminal law? Will it not give rise to abuses, if persons, while performing their duty, only formally adjust the act to the requirement of the law?
One of the next new circumstances excluding criminal liability is “Cooperating with bodies carrying out operative-investigative activities”.
Article 41 of the Criminal Code defines:
“1. The person who caused damage to the interests protected by the criminal law, cooperated with the bodies carrying out operative-investigative activities in accordance with the law, within the framework of the assignment given for the purpose of detecting, preventing the crime or assisting in obtaining evidence, shall not subject be to criminal liability.
2. A person shall be subject to criminal liability in case of committing a serious or particularly serious crime against a person when cooperating with bodies carrying out operative-investigative activities.
3. If a person participated in a criminal organization or committed the crime as a part of a criminal organization while cooperating with the bodies carrying out operational-investigative activities, which is defined as an aggravating circumstance by the Special Part of this Code, and due to that aggravating circumstance, the crime is considered particularly serious or serious, then the person cooperating with the operative-investigative activities shall not be considered guilty.
As we can see, the Criminal Code has defined the material and legal basis by virtue of which cooperating persons will be exempted from criminal liability. The mentioned article also clarified the limits of exemption from liability to exclude possible abuses.
Anna Galstyan
Social Justice NGO