Guilty Despite No Fault: A Reconsideration of Fault and Subjective Imputation

The paper addresses the breach of the principle of subjective imputation in criminal law and its application. Although issues of fault and the subjective element of an offense have been deeply studied in the doctrine and a number of legislative (criminal‑law and criminal‑procedure) safeguards have been established to exclude criminal liability for acts that display only the features of the objective (and possibly the subjective) elements of a given offense, the scope of objective imputation — and even its forms — is expanding. In recent years, a so‑called soft form of objective imputation has emerged, whereby law‑applicators reach conclusions about a person’s guilt and culpability without adducing arguments or evidence. At the same time, the Criminal Code of the Russian Federation increasingly contains provisions that prescribe objective imputation because no other basis for liability seems possible. The author cites and analyzes examples drawn both from the Criminal Code (in particular, elements such as loss of general work capacity or indelible facial disfigurement within the offense of causing grievous bodily harm, whose determination requires specialized knowledge) and from case materials (notably prosecutions for group crimes, especially offenses under Article 210 of the Criminal Code). The paper concludes that this situation is incompatible with the presumption of innocence and infringes the principles of criminal law, and is therefore unacceptable.