Physical or mental coercion is one of the circumstances that preclude the crime of an act . Physical or mental coercion is the unlawful use of violence (physical or mental) against a person, which is carried out in order to achieve the commission of this person contrary to his will of a socially dangerous act [1] .
Responsibility in such a situation is excluded due to the fact that actions are performed by a person not of his own free will and, therefore, innocently . It is noted that, in fact, in this case, the coercive acts as a βliving toolβ of the crime, and the coercive person will be the subject of the crime and responsibility [2] .
Content
Types of Coercion
As a circumstance excluding liability, physical or mental coercion can be considered, which is applied to the person immediately at the time he committed the criminal offense or shortly before it (so that there is still the danger of repeated violent influence in case of refusal to perform the required actions) [2] . In reality, physical and mental coercion are rarely carried out separately from each other: as a rule, any physical coercion contains elements of mental influence, and mental coercion is accompanied by the use of physical violence [3] .
Physical coercion
Physical coercion is a violent effect on the human body, which is reduced to causing pain or harm to health , committed in order to achieve the commission by a coercive person of a certain action [2] . Physical coercion can be reduced to a violation of the anatomical integrity of the human body ( beatings , use of weapons, etc.), effects on other physiological processes (use of potent drugs, drugs and psychotropic drugs, deprivation of food, sleep, etc.) and restriction coercive physical freedom (retention, binding, etc.) [4] .
Mental coercion
Mental coercion is an informational impact on a personβs consciousness, which, as a rule, is a threat of physical violence being applied to the coerced person or his relatives [5] .
An example of such coercion is the abduction of family members of a bank employee so that, under the threat of reprisal against them, a bank employee helps criminals carry out a bank robbery. [6]
Controversial is the question of the possibility of recognition by mental coercion of other ways of informational impact on the mind , in particular, hypnosis . The most common is the opinion that such an impact can have criminal law significance only if it completely suppresses the personβs consciousness or his will [7] .
The degree of coercion
Physical coercion can be considered surmountable or insuperable. With regard to mental coercion, as a rule, it is believed that it can only be overcome [5] .
The irresistible nature of coercion means that the will of the person was completely suppressed, that the person, causing socially dangerous consequences , had no choice but to commit a socially dangerous act. In accordance with the principle of subjective imputation, such harm should be recognized not guilty , responsibility for it cannot come [5] . In this case, the perpetrator of the crime is coercive, so-called mediocre infliction takes place.
If the coercive option was retained, the situation is similar to the extreme need : to prevent harm to the interests protected by law, the coercive harms the interests of a third party. Damage caused in such situations is assessed as being caused in a state of extreme necessity: that is, in order to recognize that it was lawful, it should be less than the harm prevented and the harm should be exactly the last exit from the situation [8] .
Physical or mental coercion in law
In the legislation of the countries of the world
Coercion standards as a circumstance precluding criminal liability are contained in the criminal law of many states. In Art. 122-2 of the French Criminal Code states: "A person acting under the influence of force or coercion, which he could not resist, is not subject to criminal liability."
The Dutch Criminal Code states that βA person who commits an offense under the influence of a force that he cannot resist is not subject to criminal liabilityβ (Art. 40). The ability to resist coercion is an evaluation feature: it is determined on the basis of a specific situation by law enforcement agencies.
Criminal Code of Spain in paragraph 6 of Art. 21 contains a broader basis for exemption from liability: it states that βone who acted in a state of intense fearβ is not subject to criminal liability. Strong fear can be caused, in particular, by coercion (primarily mental) [9] .
In the criminal law of Russia
The norm on physical or mental coercion is contained in Art. 40 of the Criminal Code . The infliction of harm to the interests protected by criminal law as a result of irresistible physical coercion is recognized as unlawful.
If physical coercion was surmountable, as well as in all cases of mental coercion, the question of liability is decided according to the rules of extreme necessity .
Notes
- β Kalugin V.V. Physical or mental coercion as a circumstance excluding the criminal act: Abstract. dis. ... cand. legal sciences. M., 2001.S. 12-13.
- β 1 2 3 Criminal law of Russia. Practical course / Under the general. ed. A.I. Bastrykin; under the scientific. ed. A.V. Naumova. M., 2007.S. 176.
- β Oreshkina T. Physical or mental coercion as a circumstance excluding the criminality of an act // Criminal Law. 2000. No. 1. S. 33-38.
- β Criminal law of Russia. Practical course / Under the general. ed. A.I. Bastrykin; under the scientific. ed. A.V. Naumova. M., 2007. S. 176-177.
- β 1 2 3 Criminal law of Russia. Practical course / Under the general. ed. A.I. Bastrykin; under the scientific. ed. A.V. Naumova. M., 2007.S. 177.
- β Can 'tiger kidnappings' be prevented?
- β Russian criminal law. General Part / Ed. V.N. Kudryavtseva, A.V. Naumova. M., 1997.S. 255.
- β Criminal law of Russia. Practical course / Under the general. ed. A.I. Bastrykin; under the scientific. ed. A.V. Naumova. M., 2007.S. 178.
- β Criminal law course. A common part. Volume 1: The Doctrine of Crime / Ed. N.F. Kuznetsova, I.M. Tyazhkova. M., 2002.S. 492-493.