1. Murder committed in a state of sudden strong emotional excitement (affect) caused by violence, bullying or grave insult on the part of the victim or other illegal or immoral actions (inaction) of the victim, as well as a long-term psychologically traumatic situation that arose in connection with systematic illegal or immoral behavior of the victim, -
shall be punishable by correctional labor for a term of up to two years, or restriction of liberty for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same term.
2. Murder of two or more persons, committed in a state of passion, -
shall be punishable by forced labor for a term of up to five years or imprisonment for the same term.
- Article 106. Murder of a newborn child by a mother
- Article 108. Murder committed by exceeding the limits of necessary defense or by exceeding the measures necessary to apprehend the person who committed the crime
Affective states: what are they?
In order to understand the content, you need to consider “affect” from all sides. The definition of this concept is a mental state that arises suddenly and is uncontrollable by the individual, carrying negative actions.
The law approves certain articles regulating the commission of acts during a given emotional state. This includes:
- Article 107 of the Criminal Code of the Russian Federation. Considers murder in the presence of a mental disorder;
- Article 113 of the Criminal Code of the Russian Federation. Considers causing serious and moderate harm to health, including those associated with this disorder.
Causes of the disorder
From the point of view of psychology, affect is always a strong emotional disturbance against the background of some events or actions.
In jurisprudence, the concept of affect is identified with a psychological characteristic, therefore the factors causing this state may be:
- Committing violent acts of physical and psychological nature.
- Insulting actions against a specific person or his relatives.
- Long-term repeated circumstances causing mental trauma in combination with illegal actions.
- Various types of crimes against a person that significantly violate his rights.
- Immoral behavior, hatred.
Commentary to Art. 107 of the Criminal Code of the Russian Federation
As in the previous case, the object and objective side of the crime coincide with these signs considered in relation to Part 1 of Art. 105 of the Criminal Code of the Russian Federation.
Killing in the heat of passion is traditionally a privileged crime. The basis for mitigation of liability in this case is the special psycho-emotional state of the perpetrator - strong emotional excitement (affect) caused by the victimized behavior of the victim of the crime.
The legislator uses the concepts of “strong emotional disturbance” and “affect” as equivalent. However, judicial practice gives them different meanings. Affect is considered only as a psychological and psychiatric characteristic of the state of the perpetrator at the time of the murder, serving as one of the proofs of his strong emotional disturbance. At the same time, this strong emotional excitement itself may not be accompanied by affect.
To determine the psychological and mental state of the perpetrator at the time of the crime, a comprehensive psychological and psychiatric examination should be prescribed. However, the experts’ indication that the state of the perpetrator at the time of the crime was not of the nature of physiological affect cannot in a particular case affect the objective legal assessment of this state, since it is given by the law enforcement officer himself, taking into account the nature of the victim’s behavior and the suddenness of the implementation of the intent to kill , other circumstances of the case.
Strong emotional disturbance is an exceptionally strong, quickly arising and rapidly occurring short-term emotional state, which can be characterized as an “explosion” of emotions in response to the unlawful behavior of the victim, making it difficult to adequately perceive reality and choose the best course of action in the current situation.
Affect is the highest manifestation of strong emotional excitement. In forensic psychiatry, affect is classified into pathological, which excludes sanity (see commentary to Article 21 of the Criminal Code of the Russian Federation), and physiological, which is discussed in Art. Art. 107, 113 of the Criminal Code of the Russian Federation. This gradation is based on the nature and degree of influence of the mental state on the consciousness and will of the subject.
Physiological affect is characterized by inhibition of the functions of the cerebral cortex and emancipation of subcortical centers, which leads to disruption of conscious-volitional processes. Anticipation of the consequences of one's actions becomes vague; control over behavior - impulsive, chaotic, unfocused; attention is disrupted (it becomes focused on the source of affect); All the forces of the body are mobilized for emotional release, accompanied by a powerful release of adrenaline into the blood, increased motor activity and an increase in physical strength. Affect is evidenced by a sharp decrease in consciousness with an expressive experience of resentment, anger, rage, motor automatism, fragmentary perception with forgetting many details of what was done; exit from the state of affective arousal is characterized by typical post-affective asthenia and emotional reactivity.
A mandatory sign of an affective state is the suddenness of its occurrence. When deciding whether strong emotional disturbance suddenly arose, one should proceed from the totality of the specific circumstances of the case, comprehensively, fully and objectively examined in court.
According to the law, for the occurrence of strong emotional disturbance, special grounds are required - illegal or immoral behavior of the victim. Their absence excludes the possibility of qualifying murder under Art. 107 of the Criminal Code of the Russian Federation, even if the perpetrator was in a state of strong emotional disturbance at the time of the murder. The law recognizes the following as grounds for strong emotional disturbance:
a) violence, i.e. physical or mental impact on the subject of the crime. Physical violence is beating or intentional unlawful infliction of physical harm to a person’s health against or against his will. Mental violence is a real, actual threat on the part of the victim to cause harm to the legally protected interests of the subject of the crime. It is important that this violence is unlawful; The legitimate actions of the victim, even those associated with causing harm to the physical or mental health of the subject of the crime, are not the basis for strong emotional disturbance in the sense of Art. 107 of the Criminal Code of the Russian Federation. If violence on the part of the victim created the right to the necessary defense, then the deprivation of life of the offender can form a crime only if there are signs provided for in Art. 108 of the Criminal Code of the Russian Federation; Art. 107 of the Criminal Code of the Russian Federation does not apply in this case;
b) bullying is the deliberate infliction of moral suffering through physical or mental (informational) influence on a person; it can be one-time (for example, evil ridicule) or ongoing (for example, systematic censure, bullying) in nature;
c) grave insult is a gross humiliation of a person’s honor and dignity, which can be considered a sufficient reason for the occurrence of passion. A grave insult may have all the elements of a crime under Art. 130 of the Criminal Code of the Russian Federation, including indecent form. However, this is not enough to characterize the insult as grave. It is necessary that the humiliation of honor and dignity be of a deep, cynical, exceptional nature, which is assessed in each specific case, taking into account all other circumstances of the case. Moreover, due to established practice, actions that formally do not contain elements of a crime under Art. 130 of the Criminal Code of the Russian Federation (for example, the behavior of the victim, who observed the process of rape and did not interfere with it, cannot be assessed in isolation from the actions of the rapist, and therefore is recognized as degrading the honor and dignity of a woman and is regarded as a grave insult);
d) other illegal or immoral actions (inaction) of the victim - this is behavior that violates moral or legal norms. These may be non-violent crimes (for example, arbitrariness, destruction or damage to property, etc.), other offenses, as well as immoral acts (for example, adultery or systematic drunkenness). It is important that murder must be qualified as committed in a state of passion, regardless of whether these actions entailed or could entail grave consequences for the perpetrator or his relatives;
e) a long-term psychotraumatic situation that arose in connection with the systematic illegal or immoral behavior of the victim is a certain set of negative life circumstances associated with the behavior of the victim, which are recognized by the perpetrator as unwanted and psychotraumatic. This situation is characterized by a long-term accumulation of negative emotions and ends with a psycho-emotional explosion, when the next episode of the victim’s behavior or other actions (for example, a third party reporting to the perpetrator about facts of unlawful or immoral behavior of the victim unknown to him) overflows the “cup of patience.”
The grounds specified in the law (violence, bullying, serious insult, illegal or immoral behavior, a psychologically traumatic situation) can cause strong emotional disturbance only in combination with the psychological characteristics of a person’s personality (active position, vulnerability, orientation to accepted norms of behavior, the need to protect and etc.). In this case, the victim’s actions can be directed both directly against the guilty person and against other persons.
When qualifying murder in a state of passion, time is of great importance as a sign of the objective side of the crime. It is necessary to distinguish between the time of occurrence of the basis of strong emotional disturbance, the time of occurrence of the strongest emotional disturbance, the time of emergence and implementation of the intent to kill. As a rule, with classic affect there is no or an extremely insignificant gap between the marked time points. Practice consistently adheres to this opinion: murder in a state of strong emotional excitement presupposes the absence of a gap in time between the circumstances that aroused emotional excitement and the subsequent murder, and if there is one, its duration should be established taking into account the specific circumstances of the case. At the same time, the inclusion of a psychotraumatic situation among the reasons for strong mental agitation allows us to establish that the behavior that serves as the basis for the emergence of emotional agitation can be distant in time from the affect itself (in this case, cumulative). The main thing is that the intent to kill arises and its implementation takes place while the culprit is in a state of strong emotional agitation.
The subjective side of murder in a state of passion is characterized by guilt in the form of sudden direct or indirect intent. Intention can be specified or unspecified; in the latter case, the qualification of the act is carried out in accordance with the actual consequences. Careless causing of death in a state of passion entails liability under Art. 109 of the Criminal Code of the Russian Federation; a state of strong emotional excitement in this case is recognized as a mitigating circumstance.
The motives for murder can be different; they are associated with the illegal or immoral behavior of the victim (revenge, jealousy, etc.). Without affecting qualifications, they have important evidentiary value for establishing strong emotional disturbance and can be taken into account when sentencing.
An error in the identity of the victim does not exclude liability under Art. 107 of the Criminal Code of the Russian Federation.
The subject of a murder in a state of passion is a natural, sane person who has reached the age of sixteen (general subject). Persons aged fourteen to fifteen years are not liable for intentionally causing death in a state of strong mental agitation.
The qualifying feature of the crime is murder in a state of passion of two or more persons (Part 2 of Article 107 of the Criminal Code of the Russian Federation). According to Part 2 of Art. 107 of the Criminal Code of the Russian Federation qualifies the infliction of death on two or more victims if illegal or immoral actions that gave rise to passion were committed by each of them. In this case, due to established practice, it does not matter whether the simultaneous deprivation of life of two or more persons is committed or the perpetrator commits two or more affected murders with a gap in time. If, in a situation of murder of two persons in a state of passion, the actions of the perpetrator do not lead to the death of one of the victims, the act (by analogy with the recommendations of the Plenum of the Supreme Court regarding the qualification of murder under clause “a”, part 2 of article 105 of the Criminal Code of the Russian Federation) should be qualified according to set of crimes provided for in Part 1 of Art. 107, part 3 art. 30 and part 2 art. 107 of the Criminal Code of the Russian Federation. In a situation of murder of two or more persons, when a state of strong emotional disturbance was caused by the behavior of only some of them, liability arises for the totality of crimes provided for in the relevant parts of Art. 107 and art. 105 of the Criminal Code of the Russian Federation. Intentional infliction of death in a state of strong emotional disturbance to one victim and careless infliction of death on another person, whose behavior is not related to the occurrence of passion, is classified as a set of crimes provided for in Art. Art. 107 and 109 of the Criminal Code of the Russian Federation.
Committing a murder in a state of strong emotional excitement in the presence of the signs specified in Part 2 of Art. 105 of the Criminal Code of the Russian Federation, does not change the qualification of the offense under Art. 107 of the Criminal Code of the Russian Federation. Within the meaning of the law, murder should not be regarded as committed with the qualifying criteria provided for in paragraphs. “a”, “d”, “e”, “e.1” part 2 of Art. 105 of the Criminal Code of the Russian Federation, as well as in circumstances that are usually associated with the idea of special cruelty (in particular, multiple injuries, murder in the presence of persons close to the victim), if it was committed in a state of sudden strong emotional disturbance (clause 16 of the Resolution of the Plenum of the Supreme Court RF dated January 27, 1999 No. 1 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)”).
Types of affects
The qualification of a murder committed in a state of passion is influenced by the specific type of state that arises. In criminal law, the following types of conditions are distinguished:
- Pathological . In this case, there is an absolute disturbance of consciousness, a complete loss of control and any sanity.
- Physiological . This state produces limited sanity, that is, the person partially understands what he is doing.
- Anomalous . In this case, an attack of aggression accumulates not so much emotional stress as concomitant conditions: alcohol, drugs.
- Cumulative . The commission of a crime occurs due to the cumulative effect of illegal immoral actions in relation to it, in other words, a “boiling point” occurs.
- Interrupted . There is a relationship here with any of the listed types, but its peculiarity is its interruption by some external act of influence.
All of these types are accompanied by complete or partial loss of memory, loss of strength, apathy and cause negative consequences. All this requires proof in each individual case.
Murder in a state of passion “proved” by examination
Dear colleagues, perhaps some of you know about the case described below or have encountered a similar one. However, after reading this interesting and, I believe, very useful material from a practical point of view, I decided to share the information received with you, because not all of you had the opportunity to read the corresponding publication in the original. To be fair, I initially inform you that in this trial the defense attorney in the case was our colleague Timur Elbrusovich Tkhostov, a lawyer from the city of Vladikavkaz.
So, a conflict between young people in a nightclub led to tragic consequences: two were killed by shots from a pistol belonging to one of them. Thanks to the efforts of the defense, the initially charged charge under Art. 105 of the Criminal Code of the Russian Federation was changed to a much softer one.
Convincing the state prosecution to change its position at trial is not an easy task. Especially when it comes to reclassifying the act from Part 2 of Art. 105 of the Criminal Code of the Russian Federation (“Murder”) at Part 2 of Art. 107 (“Murder committed in a state of passion”). The reason for this state of affairs lies, as a rule, not in the stubborn reluctance of the prosecution to soften its position.
Despite numerous scientific works in the field of determining the affective state in connection with the law, the difficulties of proving and assessing the state of the accused at the time of the commission of the crime remain.
So in the case that will be discussed below, two examinations were carried out with opposite conclusions on the subject of the study. But thanks to the attentiveness of the defendant’s lawyer, the state prosecutor and the court had no choice but to agree with the results of the examination in favor of the defendant.
Murder
As follows from the case materials, on May 20, 2011, two companies spent time in one of the nightclubs in Vladikavkaz. At one table: 35-year-old Alik Koev, his friend Alexander and their acquaintances Nadezhda and Irina, at the other: Sergei and Boris (the names of the persons involved in the case have been changed), employees of the State Security Service of senior officials of the Republic of South Ossetia.
Witnesses, club employees and friends of Koev, subsequently testified that both companies drank alcohol, but in moderation. This was also shown by the results of an examination of Koev’s blood, stating that he was in a state of mild intoxication (no more than 1.5% alcohol in the blood) at the time of the crime.
At about 3 o'clock in the morning, only Koev and his friends and Sergei and Boris remained in the club. Further developments of events were reconstructed from the words of witnesses, Koev himself and from the recording of video surveillance cameras installed in the club. All this evidence pointed to the same version: the presidential guards themselves provoked the conflict and were willing to escalate it.
So, Sergey and Boris, in order to attract attention, asked the waiter to take a bottle of vodka to Koev, who was sitting at the table, as a gift. After some time, the young people apparently felt that Koev and his friends had not thanked them politely enough for the gift and began to insult them. Koev tried to calm down the “donors”, approached them, sat down at their table and the three of them drank, after which Koev returned to his table.
However, 10 minutes later, insults against Koev and his company from Sergei and Boris continued. Moreover, both young men got up from the table and approached Koev’s table. Sergei took out the APS pistol he had (a silent version of the Stechkin pistol) and began to jerk the bolt, threatening Koev and his friends for allegedly showing disrespect.
Koev again tried to contain the conflict situation by offering a drink, and Boris removed the pistol belonging to Sergei. After that, Koev offered to pay for both tables, but Seregey and Boris continued the conversation with him, simultaneously insulting his friends and himself.
After half an hour, the conflict reached its climax. Koev and his offenders continued to sort things out on the club stage. At that moment, Koev punched Sergei in the face, causing him to fall to the floor. With the second blow, Koev knocked Boris down. In a rage, Koev took the pistol from Sergei and began to shoot at him, kicking him, and then fired shots at Boris.
He continued to shoot until he had fired all the bullets from the gun.
After that, he left the club alone. Koev later said that he did not remember anything from the moment of the conflict; he woke up in his car in front of his house with a pistol in his hand. Before reaching the apartment, he threw away the pistol, went home in a terrible state, washed himself, but could not tell his wife anything.
After some time, a relative found him, and on the same day they went to the police department, where he wrote a confession. He was interrogated and placed in a temporary detention facility.
Prosecution evidence
The main evidence for the prosecution was the testimony of Koev, witnesses, a video recording, as well as the conclusion of an outpatient comprehensive forensic psychological and psychiatric examination conducted in July 2011 (that is, 1.5 months after the incident) at the Republican Psychiatric Hospital of the Ministry of Health of the Republic of North Ossetia-Alania. According to the expert opinion, Koev “does not suffer and did not suffer from any mental disorder and he did not experience a temporary mental disorder during the commission of the crime, since he did not show signs of impaired consciousness, painfully distorted perception of reality, delusions, hallucinations and other psychotic symptoms " Therefore, they concluded, “Koev, in relation to the act accused of him, could be aware of the actual nature and social danger of his actions and direct them.”
Experts also Fr. Experts came to this conclusion after analyzing the video recording made at the time of the crime in the club.
According to experts, Koev’s behavior is determined by personal characteristics: “the desire for emotional involvement, vulnerability, sensitivity in contacts, a tendency to impulsive reactions.”
Protection actions
As Koev’s lawyer, Timur Tkhostov, noted, he began to have doubts about the qualifications of the act after a conversation with his client. Koev told him that no expert studies specified in the conclusion were carried out on him, and the staff of the medical institution simply talked to him a little.
Doubts about the quality of the examination were confirmed after the lawyer studied the competence of the experts and also compared data on the time of the examination received from the medical institution and the pre-trial detention center. In the motion to exclude evidence - the expert opinion - the defense lawyer pointed out two circumstances.
Inadequate qualification of experts. The lawyer noted that the qualifications of three of the four experts did not meet the requirements of Art. 13 of the Federal Law of May 31, 2011 No. 73-FZ “On state forensic activity in the Russian Federation.” The experts questioned at the court hearing confirmed that they had never been certified for the right to independently conduct forensic examinations by expert qualification commissions, since this is associated with significant monetary costs for the State Health Institution, and the institution is not provided for funding for these purposes. They also did not take any advanced training courses.
Finally, the doctors were not certified in the specialty of forensic psychiatric examination.
Discrepancies in data on examination time. Having asked the administration of the temporary detention facility for information about how long Koev was absent from the detention center on the day when he was taken for examination, the lawyer received the answer that he was taken out on July 6, 2011 at 10 o’clock. 40 min. and placed back 12 hours. 50 min. At the same time, the expert report stated that Koev’s research on 07/06/2011 was carried out for 10 hours. 00 min. until 13 o'clock 00 min.
None of the experts questioned in court could explain this discrepancy in time in the documents. This indirectly confirmed the defense’s position that the tests prescribed in the expert report were not actually carried out on Koev.
The defense lawyer's arguments were considered justified not only by the court, but also by the prosecutor, who did not object to the motion to exclude the expert opinion from the list of evidence.
Repeated examination. Almost simultaneously, the lawyer filed a petition to order and conduct a comprehensive forensic psychological and psychiatric examination of the defendant and asked that its execution be entrusted to experts from the Federal State Institution “State Scientific Center for Social and Forensic Psychiatry named after. V.P. Serbsky" of the Ministry of Health and Social Development of the Russian Federation, considering that the experts of this institution are the most competent specialists in this field. The defense lawyer formulated six questions for the experts, which did not raise any objections from the prosecutor and the victims' lawyers.
From the case materials: “Judge of the Supreme Court of the Republic of North Ossetia.
Decided... To raise the following questions for the permission of experts:
Does Koev suffer from any mental illnesses or disorders, if so, which ones, and does he need compulsory treatment?
During the period relating to the commission of the incriminated act, did Koev show signs of any temporary mental disorder; could he be aware of the nature of his actions and direct them when committing the incriminated act?
Is Koev A.R., due to his mental state (health), capable of correctly perceiving the circumstances that are important for the case and testifying about them?
Does Koev have such individual psychological characteristics that could have had a significant impact on his behavior at the time of committing the crime charged with him?
What is Koev’s mental state at the present time? Can he realize the nature of his actions and direct them?
Was Koev, at the time of committing the crime, in a state of strong emotional excitement (affect) or in another emotional state that could have influenced his behavior?”
The prosecution and the victims objected only to the examination of the defendant in Moscow, reasonably citing the fact that this would seriously delay the trial due to the need to transfer Koev. The court agreed with this opinion and ordered a new examination to be carried out by the management of the Republican Psychoneurological Dispensary of the Ministry of Health of the Kabardino-Balkarian Republic.
The specialists of this institution came to the conclusion that the defense initially adhered to.
From the case materials: “During the psychological analysis of the criminal case materials and experimental psychological research, the following was also revealed:
1. The expert has signs of affective narrowing of consciousness. It manifests itself in a sharp limitation of the field of perception, a sharp violation of control over the situation, and a transformation in the nature of experiences. Attention is focused exclusively on the source of the violence and the few elements of the situation associated with it.
The verbal aggression of the victims against his mother, as well as threats to life against the expert himself, had the greatest psychologically traumatic significance for the expert subject Koev. The mother occupied one of the highest places in Koev’s hierarchy of values.
The blockade of the need for one’s own safety, the need for respect for a loved one, caused by the behavior of the victims, led to the development of a deep state of frustration in the subject.
The typical dynamics of emotional arousal are noted: subjective suddenness and impulsiveness of development, explosive growth and sharp rapid decline... There are characteristic “physiognomic” signs of affect associated with its somato-vegetative manifestations (pallor, rapid heartbeat).
Thus, based on the psychological analysis of the materials of the criminal case and the data of the experimental psychological study, the expert was diagnosed with physiological affect (answer to question No. 6), caused by serious insults and threat to life from the victims; the following signs of affect are present:
· the three-phase structure of affect is clearly distinguished;
· in the pre-affective phase, there is an increase in emotional tension, despite attempts at “coping” behavior (the subject tried to avoid the conflict, did not look at the victims, “so as not to provoke”, “tried to smooth it out”); subjective (not temporary!) suddenness of the occurrence of an affective explosion in response to the next psychotraumatic influence in a person who is non-conflict, oriented to social norms, impressionable, practical;
· at the beginning of the second phase - an affective explosion, there is a partial narrowing of consciousness with fragmentation and incompleteness of perception, temporary distortions; consciousness filled with experiences associated with traumatic effects; despite the presence of post-affective amnesia in the expert (he reports that he does not remember what happened), witnesses to the incident note a disorder in the expert’s control of action, a decrease in the ability to predict and long-term consequences of the action; there is a sharp change in vasomotor and other...; the subject of the expert has deep mental and physical asthenia with a feeling of exhaustion... Phenomena of post-affective amnesia are noted, expressed in the inability to reproduce facts related to the tort, which are associated with the natural mechanism of protecting consciousness from severe psycho-traumatic events (repression-type protection is due to individual psychological characteristics) and allow you to diagnose physiological affect in the subject; ..."
Jury verdict and sentence
As mentioned above, after the announcement of the expert report, the state prosecutor asked the court to reclassify the defendant’s actions in the direction of mitigation, namely with paragraph “a” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on Part 2 of Art. 107 of the Criminal Code of the Russian Federation, as the murder of two or more persons, committed in a state of passion. By virtue of Part 7 of Art. 246 of the Code of Criminal Procedure of the Russian Federation, a criminal case under Part 2 of Art. 105 of the Criminal Code of the Russian Federation was terminated and the trial continued on the new charge.
The case was considered by a jury, which at the end of February 2012 found Koev guilty of committing a crime. Based on this verdict, the court passed a verdict and sentenced Koev to two years and six months in prison. The imposition of a sentence (half the maximum under Part 2 of Article 107 of the Criminal Code of the Russian Federation) was influenced, firstly, by the fact that the jury’s verdict found the defendant deserving of leniency.
This, in accordance with Art. 65 of the Criminal Code of the Russian Federation, limited the upper threshold of the sentence to two thirds of the maximum possible term. Secondly, the court took into account the confession, admission of guilt, as well as the presence of Koev’s two young children and lack of criminal record.
The victims appealed the verdict to the Supreme Court of the Russian Federation, considering it unfair. But it was upheld (decision of the Judicial Collegium of the RF Armed Forces dated 06/05/2012 No. 22-O12-3SP).
Difficulties of proof
Murder in a state of passion is considered by judicial practice from several angles.
The following aspects need to be taken into account:
- The situation before the crime. A person’s behavior in everyday life is clarified, that is, his usual reactions, and his psychological portrait is drawn up. It is also necessary to consider living conditions, the presence of provoking factors, such as constant bullying or beatings. At this stage, a survey of relatives, colleagues or neighbors is conducted, who can, one way or another, help analyze the personality from all sides.
- The actions of the accused during the commission of the crime . Here it is important to examine the process of the offense itself, that is, to study how it was carried out. Any details are important: what the accused said and how he looked, whether the victim’s behavior caused such a reaction.
- The situation after a criminal act. The state of the accused is assessed immediately after the incident: does he remember what happened, is there a fading of emotions, loss of strength, apathy. It is also important to find out whether he tried to hide traces of the crime, escape and other facts.
Examination of affective states
The need to conduct a forensic psychological examination is determined by the investigator, inquiry officer or court.
If this measure is prescribed, a comprehensive assessment of the actions of the accused is carried out, taking into account all three aspects of behavior, as well as the mental characteristics of the individual.
At the same time, it seems important to distinguish pathological affect from all others, since in the first case criminal liability cannot be applied to the accused.
The main answer that should be given in the examination report is: whether the defendant, for example, at the time of the murder, was in a state of passion or not.
The difficulty is that often such an examination is carried out later than the required period, which erases important data for correct analysis.
Definition and differentiation of murder in a state of passion under Art. 107 of the Criminal Code of the Russian Federation
The term “affect” is understood as a sudden strong emotional disturbance caused by violence, bullying or grave insult on the part of the victim or other illegal or immoral actions (inaction) of the victim, as well as a long-term psychologically traumatic situation that arose in connection with the systematic illegal or immoral behavior of the victim.
Murder committed in the heat of passion is punishable by correctional labor for up to 2 years, or restriction of freedom for up to 3 years, or forced labor or imprisonment for up to 3 years.
For the murder of two or more persons committed in a state of passion, punishment is provided in the form of forced labor or imprisonment for up to 5 years.
Minimize the negative consequences of bringing to criminal responsibility for murder committed in a state of passion, or avoid this responsibility, as well as reduce the likelihood of reclassifying the act from Art. 107 of the Criminal Code of the Russian Federation at Art. 105 of the Criminal Code of the Russian Federation is only possible by promptly using the services of a competent lawyer, contacting him as early as possible.
Affective intent
This concept is included in the process of proving the presence of a mental disorder at the time of the commission of a crime. Affective intent is understood as the emergence of an impulse to act that causes harm, unexpected for the killer and the victim. In this case, the action itself occurs immediately, immediately, in one “step”.
If there is this kind of intent, then it becomes clear that the criminal could not have planned or predicted the situation in advance, which qualifies the act under Article 107 of the Criminal Code of the Russian Federation.
The court verdict under Part 1 of Art. 107 of the Criminal Code of the Russian Federation | Arbitrage practice
Home >> Court decisions in criminal cases >> Court verdict under Part 1 of Art. 107 of the Criminal Code of the Russian Federation | Arbitrage practice
P R I G O V O R In the name of the Russian Federation
January 23, 2016 Moscow Golovinsky District Court of Moscow composed of presiding judge Vinediktova L.M., with secretary Matusevich G.A., with the participation of the state prosecutor assistant Golovinsky interdistrict prosecutor of Moscow Shcherbakova M.I., Defendant Shuvalov V.A., Defender-lawyer Samoilov A.G., <data withdrawn> from January 22, 2016, representative of the victim P having examined in open court the materials of the criminal case against Shuvalov V.A., <data withdrawn> accused of committing a crime under Part 1 of Article 107 of the Criminal Code of the Russian Federation, U S T A N O V I L : Shuvalov V.A. committed murder in a state of sudden strong emotional disturbance (affect) caused by a long-term psychotraumatic situation that arose in connection with the systematic immoral behavior of the victim. So, on August 25, 2013, at approximately 07:50 a.m., being at the address: <address>, deliberately, aware of the social danger of his actions, foreseeing the possibility of socially dangerous consequences in the form of the death of another person and wanting this, on the basis of personal hostile relationship with S that arose in connection with the systematic immoral behavior of S., who was in a long-term intimate relationship with the wife of V.A. Shuvalov. – F., while being, according to the conclusion of a comprehensive forensic psychological and psychiatric commission of experts No. dated 02.12.2013, at the time of the commission of the crime, in a state of pronounced emotional arousal, reaching the level of physiological affect, the emergence of which was facilitated by a psychotraumatic situation, the accumulation of negative experiences associated with situation in the family, having at the same time found a time and place in order to implement his criminal intent aimed at causing death. With a knife, he attacked the victim and inflicted at least eight knife blows on the latter in the face, chest, back, neck and upper limbs, thereby , causing in the process of striking and self-defense the victim A.P. Moroz, according to the conclusion of the forensic medical examination No. dated September 23, 2013, bodily injuries in the form of: a penetrating stab wound of the anterior surface of the chest, with damage to the left lung and heart, penetrating stab wound of the anterior surface of the chest, with damage to the left lung and heart, penetrating stab wound of the posterior surface of the chest, with blind damage to the upper lobe of the left lung, penetrating stab wound to the posterior surface of the body, with blind damage to the lower lobe of the left lung , a stab wound to the lumbar region on the left, with penetration into the spinal canal with complete intersection of the lower parts of the spinal cord (cauda equina), damage to the body of the third lumbar vertebra caused by a blade (fragment) of a knife found in the wound canal of the wound, with each injury, both individually and collectively caused serious harm to health on the grounds of danger to human life; a non-penetrating stab wound of the anterior surface of the chest, causing slight harm to a person’s health, due to a short-term health disorder lasting up to three weeks, an incised wound of the right wing of the nose with transition to the right lateral surface of the nose, two incised wounds of the dorsal surfaces of both hands, a bruise on the right the side surface of the face caused by the impact of a hard blunt object with a limited contact surface, abrasions of the face and the right side surface of the neck caused by two sliding (tangential) impacts of a hard object with a limited contact surface, and not entailing short-term health problems or minor permanent loss of general health disability and are regarded as injuries that do not cause harm to human health. Death occurred within a few minutes after receiving all the above-described injuries at the scene of the crime committed against him as a result of acute massive blood loss caused by penetrating stab wounds. Defendant Shuvalov V.A. agreed with the charge, voluntarily and after consultation with a lawyer, filed a petition for a verdict without a trial, realizing the nature and consequences of such a petition, which the court, with the consent of the victim P and the absence of objections from the state prosecutor, satisfied. The court comes to the conclusion that the accusation, which the defendant V.A. Shuvalov agreed with, is justified and supported by evidence collected in the criminal case, and qualifies the actions of V.A. Shuvalov. under Part 1 of Article 107 of the Criminal Code of the Russian Federation as murder in a state of sudden strong emotional excitement (affect) caused by a long-term psychotraumatic situation that arose in connection with the systematic immoral behavior of the victim. When sentencing the defendant Shuvalov V.A. the court, by virtue of Article 60 of the Criminal Code of the Russian Federation, takes into account the circumstances, the nature and degree of public danger of a crime classified as minor gravity, circumstances mitigating and aggravating the punishment, as well as the impact of the imposed punishment on the correction of the convicted person, on the living conditions of his family, data on the personality of the defendant , and comes to the conclusion that Shuvalov V.A. punishment in the form of restriction of freedom. When determining the amount of punishment for the defendant Shuvalov V.A. the court takes into account information about the identity of the defendant, who admitted his guilt and repented of his crime, turned himself in to the investigative authorities, was brought to criminal responsibility for the first time, has two young children, has a positive character at his place of work and residence, and is registered in a psychoneurological and drug treatment clinic is not a member, petitioned for consideration of the case in a special manner, the reason for committing the crime was the immoral behavior of the victim, which in total is recognized by the court as circumstances mitigating the punishment. There are no circumstances aggravating the defendant's punishment in the case. Considering that Shuvalov V.A. since August 25, 2013 he has been kept in a pre-trial detention center, guided by Part 4 of Article 72 of the Criminal Code of the Russian Federation, the court considers it necessary to count the specified period of detention into the imposed punishment in the form of restriction of freedom at the rate of one day of imprisonment for two days of restriction of freedom, and taking into account the period of detention of Shuvalov V.A. in custody, completely release the defendant V.A. Shuvalov. from punishment in the form of restriction of freedom. The court, guided by Article 1101 of the Civil Code of the Russian Federation, comes to the conclusion that the claims of the victim P are satisfied in part, taking into account both the nature of the moral suffering caused to the victim, as well as taking into account the requirements of reasonableness and fairness, taking into account the factual circumstances in which moral harm was caused, in including immoral behavior of the victim. Based on the above, guided by Article 316 of the Code of Criminal Procedure of the Russian Federation, the court PRI G O V O RIL: Shuvalova V.A. found guilty of committing a crime under Part 1 of Article 107 of the Criminal Code of the Russian Federation and imposed a sentence of restriction of freedom for a period of 10 months. Based on Part 4 of Article 72 of the Criminal Code of the Russian Federation, taking into account the period of detention of V.A. Shuvalov. in custody until a court verdict, count the specified period of detention into the assigned punishment at the rate of one day of imprisonment for two days of restriction of freedom, and consider the assigned punishment in the form of restriction of freedom to be fully served. Preventive measure for V.A. Shuvalov in the form of detention in custody to change, releasing him from custody in the courtroom. The claims of victim P are partially satisfied. Collect from Shuvalov V.A. in favor of P compensation for moral damage in the amount of 500,000 rubles. Physical evidence: a fragment of chair upholstery, tiles, a substance washed off on a gauze swab, 4 white sheets, a flash drive, a gray denim jacket, a polo shirt, blue-gray jeans, a belt, underpants, a pair of socks, a blade fragment knives, four skin flaps, a fragment of the sternum, hair from the head C, sections of nail plates C stored in the evidence storage room of Golovinsky MRSO for the Special Administrative Okrug of the Main Directorate of the Investigative Committee of the Russian Federation in Moscow, destroy. The verdict can be appealed to the Moscow City Court within 10 days from the date of its proclamation. If an appeal is filed, the convicted person has the right to petition for his participation in the consideration of the criminal case by the court of appeal. Court decisions under Art. 107 of the Criminal Code of the Russian Federation Lawyer in South-Western Administrative District
