1. Capturing or holding a person as a hostage, committed for the purpose of forcing the state, organization or citizen to perform any action or refrain from performing any action as a condition for the release of the hostage, -
shall be punished by imprisonment for a term of five to ten years.
2. The same acts committed:
a) by a group of persons by prior conspiracy;
b) has become invalid;
c) with the use of violence dangerous to life or health;
d) using weapons or objects used as weapons;
e) in relation to a known minor;
f) in relation to a woman who is known to the perpetrator to be pregnant;
g) in relation to two or more persons;
h) for mercenary reasons or for hire, -
shall be punishable by imprisonment for a term of six to fifteen years with restriction of freedom for a term of one to two years.
3. Acts provided for in parts one or two of this article, if they were committed by an organized group or caused by negligence the death of a person or other grave consequences, -
shall be punishable by imprisonment for a term of eight to twenty years with restriction of freedom for a term of one to two years.
4. Acts provided for in parts one or two of this article, if they entailed the intentional causing of death to a person, -
shall be punishable by imprisonment for a term of fifteen to twenty years with restriction of freedom for a term of one to two years or life imprisonment.
Note. A person who frees a hostage voluntarily or at the request of the authorities is exempt from criminal liability unless his actions contain another crime.
Commentary to Art. 206 of the Criminal Code of the Russian Federation
1. The crime is international in nature. The fight against hostage-taking is carried out on the basis of the International Convention against the Taking of Hostages, adopted by the UN General Assembly in New York on December 17, 1979. This document identifies the main directions of counteraction to this crime and hostage taking is defined as the capture or holding of another person and the threat to kill, injure or continue to hold the hostage in order to force a third party (state, international intergovernmental organization, any natural or legal person or group of persons) to commit or refrain from committing any act as a direct or indirect condition for the release of a hostage. ——————————— Collection of international treaties of the USSR. Vol. XLIII. M., 1989. S. 99 - 105.
2. An additional object of the crime may be human life and health, freedom.
3. The objective side of the crime is the capture or retention of a hostage.
Hostage is an individual captured and (or) held for the purpose of compelling the state, organization or individuals to perform any action or refrain from performing any action as a condition for the release of the held person.
Taking a hostage involves the unlawful forcible restriction of the freedom of at least one person, committed openly or secretly, through deception, for example. moving a hostage to the place of detention with the help of deception, with the use of violence not dangerous to life or health (Article 116 of the Criminal Code of the Russian Federation), or without it, or with the threat of using any violence in case of failure to comply with the requirements presented to the state, organization or citizen as conditions for the release of the hostage . The nature of the demands does not matter; they may be legal or illegal. The threat of murder or infliction of grievous bodily harm when taking a hostage or detaining him does not require independent qualification.
Holding a hostage means forcibly preventing his movement, the return of freedom, access to the captured authorities, keeping him in a room that the hostage cannot leave on his own.
4. This crime is characterized by the specificity of the goal - the commission by representatives of the state, organizations or citizens of certain actions as a condition for the release of the hostage, therefore, a mandatory element of the objective side is the putting forward by the kidnappers of certain demands of a political, nationalist, religious, criminal and other nature, for example: to release some - or a convicted person from prison, provide money, weapons, transport, leave the country of residence, etc., or refrain from committing any action. Making demands, e.g. the threat of shooting a hostage in order to force the state to perform any action as a condition for the release of the hostage is covered by the crime under Art. 206 of the Criminal Code and additional qualifications under Art. 205 of the Criminal Code does not require. ——————————— BVS of the Russian Federation. 2001. N 1. S. 11 - 12.
5. Taking a hostage is a continuing crime with formal elements and is considered completed from the moment of capture, when the victim is actually deprived of his freedom, and if a person is holding a hostage already captured by other persons, then from the moment of holding, regardless of the length of time. A failed attempt to take a hostage is classified as an attempted crime.
6. The subjective side of the crime is characterized by direct intent, the perpetrator realizes that he is seizing or holding a person as a hostage in order to force the state, organization or citizen to perform any action or refrain from performing any action as a condition for the release of the hostage, and wishes to act in this way .
7. The subject of the crime is a sane individual who has reached the age of 14.
8. Part 2 of the commented article provides for the qualifying circumstances of hostage taking: a) by a group of persons by prior conspiracy; c) with the use of violence dangerous to life or health; d) using weapons or objects used as weapons; e) in relation to a known minor; f) in relation to a woman who is known to the perpetrator to be pregnant; g) in relation to two or more persons; h) for selfish reasons or for hire.
The qualifying feature of a group of persons by prior conspiracy in the taking of hostages does not have any particularity and is determined according to the rules of Part 2 of Art. 35 of the Criminal Code (see commentary to it).
The qualifying sign of violence dangerous to life or health involves intentional infliction of minor harm to health (Article 115 of the Criminal Code of the Russian Federation), intentional infliction of harm to health of moderate severity (Article 112 of the Criminal Code of the Russian Federation), torture (Article 117 of the Criminal Code of the Russian Federation), intentional infliction of serious harm to health (Article 111 of the Criminal Code of the Russian Federation).
The qualifying sign of the use of weapons or objects used as weapons means any weapon, both listed in the Weapons Law and not mentioned in this Law, and the object can be any object, either selected on the spot or brought in advance, adapted for this.
Qualifying signs of taking a hostage known to be a minor (clause “e”, part 2 of the commented article), a woman who is known to the perpetrator to be pregnant (clause “f” of part 2 of the commented article), can be applied only in those cases when the perpetrator reliably knows about the minor age of the hostage, i.e. that this person has not reached 18 years of age, or that the female hostage is pregnant, regardless of its stage.
The qualifying signs of taking two or more hostages (clause “g” of part 2 of the commented article) and the commission of a crime for mercenary motives or for hire (clause “h” of part 2 of the commented article) are applied similarly to the qualifying signs of murder, provided for accordingly in paragraph p. “a” or “h”, part 2, art. 105 of the Criminal Code (see commentary to them).
9. Part 3 of the commented article provides for especially qualified types of hostage taking, which are the acts provided for in part 1 or 2 of the commented article, if they were committed: by an organized group or caused by negligence the death of a person or other grave consequences. These signs are similar to the corresponding signs of a terrorist act - paragraphs “a” - “c” of Part 2 of Art. 205 of the Criminal Code (see commentary to them).
10. Part 4 of the commented article provides for a particularly qualified type of hostage-taking - acts provided for in part 1 or 2 of this article, if they entailed the intentional causing of death to a person. This sign is similar to the sign of a terrorist act specified in paragraph “b” of Part 3 of Art. 205 of the Criminal Code (see commentary to it).
11. The subjective side of hostage taking in cases of careless death of the victim or other grave consequences is characterized by two forms of guilt - direct intent in relation to the actions and carelessness (frivolity or negligence) in relation to such consequences.
12. In note. The commented article provides for the conditions for the release from criminal liability of a person who voluntarily or at the request of the authorities released a hostage, if his actions do not constitute another crime. If the person committed other crimes during the hostage-taking, e.g. illegal trafficking of weapons, drugs, intentional harm to the health of a captured person, intentional destruction or damage to property, then for such crimes criminal liability arises on a general basis. This incentive norm was introduced by the legislator in order to prevent or reduce the possibility of more serious consequences of this crime. However, if the person’s demands regarding the conditions for the release of the hostage are met partially or completely, then this note does not apply (see commentary to the note to Article 126).
What is hostage taking
Article 206 of the Criminal Code of the Russian Federation, as well as comments to it, establishes provisions that define the very essence of the concept of a hostage and his capture. So, a hostage is always a person who was held in order to force the state or society to perform or, on the contrary, not to perform any action. From this concept we can smoothly move on to what seizure is and what is special about this particular type of crime.
Taking a hostage is taking possession of a person, moving him in space and limiting the person’s ability to move. That is, it is always necessary to have these three actions, which together form the act provided for in the article of the Criminal Code of the Russian Federation. It is important that this crime is considered one of the most dangerous and falls into the category of especially serious ones, encroaching on several types of social relations at once.
Judicial practice: sentences and punishment under Art. 206 of the Criminal Code of the Russian Federation
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The corpus delicti, its signs
To qualify an act, it is always necessary to have a number of differences; hostage taking is no exception. The corpus delicti implies a set of mandatory and optional features that are important elements. Without them, it is simply impossible to bring a person to justice and bring the case to court.
Mandatory signs of each of the crimes are necessary, as follows from their name. To understand their essence, we can consider hostage taking. The signs of this act - in this case mandatory - must be part of each element of the crime. For example, the type of the latter. It is always viewed objectively. When a hostage is taken, it is always formal.
Optional features do not necessarily have to be present as part of the unlawful act. An example of this could be various instruments of a crime, methods or methods of committing it, even a place or time. However, all this is not mandatory when determining the act and its qualification.
The subject and subjective side of the crime
The general subject of the crime is a mandatory element for each illegal act. To characterize a person breaking the law, it is necessary to simply determine the age at which criminal prosecution can be carried out. We are talking about the 14th anniversary, as well as in the case of hostage taking. That is, the punishment for kidnapping, imprisonment, etc. will be no different from the punishment for taking a hostage.
Guilt in this crime manifests itself in the form of direct intent; there simply cannot be any other development of events. The person who commits this act is always aware of all the consequences of his own actions and controls them, which makes him a subject, confirming his sanity. Also, there can be no difference from capture in this matter.
Kidnapping concept
The provisions on this crime are enshrined in the Criminal Code of the Russian Federation. Kidnapping is an act that involves the unlawful removal of a person, his detention and movement. As we can see, several actions are carried out, which together form a dangerous act. However, kidnapping is not particularly serious, but simply a serious crime.
Important for qualification is the fact that kidnapping is an act that is committed exclusively secretly, it can only be known to close relatives, that is, those people to whom it is indirectly directed. All this is reflected in the corpus delicti of the crime and determines its difference from other similar illegal actions, for example, such as illegal imprisonment.
Object of crime
As mentioned above, those social relations on which a criminal attack is committed are the object of the act. Article 126 of the Criminal Code of the Russian Federation defines personal freedom as an object when a person is kidnapped. This is said precisely because this element of the crime is a distinctive feature of this act from the one referred to in Article 206.
The peculiarity of this object is that it affects subjective human rights, that is, the right to free movement and choice of location. Accordingly, if a person consents to his so-called kidnapping, then there will be no illegal act, the crime will disappear by itself. That is, unlike hostage-taking, where the object is public safety, in this case only the person’s personal interests are important.
The difference between hostage taking and kidnapping
If you fully evaluate the composition of each of the above crimes, analyzing them separately, and then compare all the component parts, you can identify several obvious differences that help you further see a clear boundary between these acts.
First, the object. This is the most important thing to remember. Taking a hostage implies an attack on public safety, while kidnapping implies an attack on a person’s freedom. Secondly, openness. In the first case, the crime can be committed both secretly and openly, in the second - only secretly. Thirdly, the persons to whom the demands are addressed. In case of capture, this is the state, society and other persons who have no relationship with the victim; in case of abduction - close relatives.
And the last thing that is worth mentioning separately is the moment of the end; it plays a significant role in determining the corpus delicti. So, the taking of a hostage is considered completed from the moment the demands are presented, while kidnapping is considered completed from the moment the person is removed from his usual environment. It is this difference, as well as the signs listed above, that will help to correctly determine the type of crime and classify it.
The objective side of kidnapping
This element of the crime, as mentioned above, is the manifestation of the act in the external environment. Kidnapping can be carried out using various methods: seizure, retention and movement of the victim. The presence of all these steps together is a prerequisite for the existence of a crime.
As for the type of unlawful act, just as in the case of hostage taking, it is formal, completed from the moment the actions begin, which simplifies the qualification process, since the occurrence of consequences and the connection between them and the actions committed are not at all necessary. This feature does not at all distinguish this crime from the one discussed above, but it is of considerable importance.
