Problems of Implementing Criminal Liability for Battery Committed by a Person with a Criminal Record

An analysis of court decisions objectifies the formal establishment of the prejudicial feature of the offense under Part 2 of Article 116.1 of the Criminal Code of the Russian Federation. By duplicating the law in terms of defining the subject, the indictments are limited to stating sentences that give rise to the conviction of the accused for previously committed violent and mercenary violent crimes. Consistent with the practice of imputing offenses that include a prejudicial feature referring to a specific tort, this approach is unacceptable when implementing Part 2 of Article 116.1 of the Criminal Code of the Russian Federation, which specifies the method used by the perpetrator, which must be established by identifying the mechanism of harm. Having assessed the opinions of scholars regarding the scope of prejudicial crimes, the author, proposing her own criteria, substantiates the need to specify in the sentence the actions recognized as violence in the previously committed crime. The studied practice reflects the variability in considering criminal experience when sentencing persons convicted under Part 2 of Article 116.1 of the Criminal Code of the Russian Federation, which was also characteristic of the implementation of Article 314.1 of the Criminal Code of the Russian Federation. Having analyzed the opinions of scholars challenging the validity of both the disregard of paragraph «a» of Part 1 of Article 63 of the Criminal Code of the Russian Federation and the application of the rules of Part 2 of Article 68 of the Criminal Code of the Russian Federation without recognizing recidivism as an aggravating circumstance, the author notes the significance of Article 63 of the Criminal Code of the Russian Federation only for determining the direction of judicial penalization, the specific mechanism of which is embedded in Article 68 of the Criminal Code of the Russian Federation. The refusal to consider paragraph «a» of Part 1 of Article 63 of the Criminal Code of the Russian Federation nullifies the significance of the corresponding type of multiplicity of crimes when imposing punishment. 

1. Alferenok EA, Dmitrenko AP. Conviction for a crime committed with the use of violence as a classifying element of battery (part 2 of art. 116.1 of the Criminal Code of the Russian Federation). Vestnik ekonomicheskoy bezopasnosti. 2022;6:20-23. (In Russ.).

2. Artyushina OV. A criminal record for a crime committed with the use of violence as a criminalizing sign. Vestnik Kazanskogo yuridicheskogo instituta MVD Rossii [Bulletin of the Kazan Law Institute of MIA Russia]. 2023;14(2):36- 43. (In Russ.).

3. Inogamova-Khegay LV. The conceptual foundations of the competition of criminal law norms: A monograph. Moscow: Norma, Infra M Publ.; 2015. (In Russ.).

4. Kalinina OM. Problems of sentencing under Article 3141 of the Criminal Code of the Russian Federation. Ugolovnoe pravo [Criminal Law]. 2024;3:26-33. (In Russ.).

5. Kim DYu. Features of the classification of the act and the appointment of punishment in the commission of crimes provided for in art. 314.1 of the Criminal Code. Zakonnost. 2022;5:37-41. (In Russ.).

6. Klimov AS, Kharkov SN. Features of the establishment of recidivism of crimes and its legal consequences under the current criminal legislation. Mirovoy sudya [Magistrate Judge]. 2018;9:20-26. (In Russ.).

7. Krasnov YuK, Nadvikova VV, Shkatulla VI. Legal writing: A textbook. Moscow: Yusticinform Publ.; 2014. (In Russ.).

8. Kutsyk VP. Conviction for a crime committed with the use of violence as a classifying element provided for in Part 2 of Article 116.1 of the Criminal Code of the Russian Federation. Rossiyskiy sledovatel [Russian Investigator]. 2024;2:44-47. (In Russ.).

9. Lazareva OV, Sukhova NI. Legal writing. A textbook. Saratov; 2015. (In Russ.).

10. Mingalimova MF. A new approach to sentencing for a crime under Article 3141 of the Criminal Code of the Russian Federation. Ugolovnoe pravo [Criminal Law]. 2021;7:34-41. (In Russ.).