Illegal abortion: punishment under Art. 123 of the Criminal Code of the Russian Federation, in what cases is carrying out an artificial termination of pregnancy considered an offense, what are the signs and elements of the crime?

Criminal Code of the Russian Federation in the latest edition:

Article 123 of the Criminal Code of the Russian Federation. Illegal artificial abortion

1. Carrying out an artificial termination of pregnancy by a person who does not have a higher medical education in the relevant profile -

shall be punishable by a fine in the amount of up to eighty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years.

2. Lost power. — Federal Law of December 8, 2003 N 162-FZ.

3. The same act, if it negligently entailed the death of the victim or the infliction of grievous harm to her health, -

shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.

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In what cases is it illegal to perform an induced abortion?

The legislation establishes standards for carrying out artificial termination of pregnancy, mandatory for execution during its implementation, in particular in terms of:

Up to 12 weeks of pregnancy.
According to social indications - up to 22 weeks of pregnancy.
For medical reasons - before the onset of labor, without a time limit.

This procedure must be carried out in a medical institution that is licensed to provide these types of medical services and must be carried out by a person with a special medical education.

An abortion will be considered illegal if it is performed:

a person who does not have special medical education;
in an institution that does not have the right to provide this service;
in violation of the established deadlines above, in the absence of indications.

This circumstance is indicated by the following legal norms:

Letter of the Ministry of Health of the Russian Federation dated August 30, 2017, No. 15-4/10/2-6088 “On carrying out artificial termination of pregnancy on the basis of a license to carry out medical activities containing work (service) in obstetrics and gynecology (except for the use of auxiliary reproductive technologies).
Article 56 of the Federal Law of November 21, 2011 N 323-FZ (as amended on August 3, 2018) “On the fundamentals of protecting the health of citizens in the Russian Federation.”
Instructions on carrying out artificial termination of pregnancy, approved by Order of the Ministry of Health on October 14, 2003 under No. 484.
Part 1 of Article 123 of the Criminal Code of the Russian Federation.

Such specialists can only include persons with higher medical education, who have received a diploma from a medical university and have additional specialization:

in obstetrics and gynecology;
in gynecological surgery.

In other words, if these specializations do not exist, abortion is illegal . This list is regulated by Article 36 of the Fundamentals (No. 5487-1), Letter No. 15-4/10/2-6088 and other special legislative acts establishing licensing standards for specialists in this field of services.

Under no circumstances are specialists in the field of obstetrics who do not have a higher medical education allowed to perform an abortion.

Depending on the severity of a given crime, it has different statutes of limitations set out in Article 78 of the Criminal Code of the Russian Federation.

The statute of limitations expires:

If illegal proceedings were carried out with minor violations - after 2 years.
If it has an average severity of harm to health - after 6 years.
In the event of the death of an aborted woman, in case of significant violations of the regulations - after 10 years.

The statute of limitations begins from the moment the crime becomes completed (committed).

Aggravating circumstances

The following features can be considered as such:

the death of the victim, which occurred as a result of the actions of the person performing the abortion;
causing serious harm to a woman’s health (this means, in particular, complete loss of fertilization and bearing a child, which is a popular serious complication).

According to Russian law, abortion without medical indications is possible only until the end of the twelfth week of pregnancy. Later, termination is done only for medical reasons (the presence of serious genetic abnormalities in the fetus, the potential danger of maintaining the situation for the life and health of the mother).

Is it always necessary to obtain a woman's consent?

When performing an abortion, the woman's consent must be obtained. The absence of official registration of consent can become a precedent for administrative penalties even when everything happened without consequences to health and in accordance with the norms established by law.

And if consequences occur in the patient’s health, problems can reach criminal liability under Article 111 of the Criminal Code of the Russian Federation - intentional infliction of grievous bodily harm.

An exception that does not require consent is when the patient’s life is in danger and she cannot give it because she is unconscious or otherwise incompetent.

It is especially important to obtain such consent when an abortion is performed for social or medical reasons beyond 12 weeks. If consent is not obtained, the doctor does not have the right to take the initiative and involve the patient in an artificial termination of pregnancy , since this requirement violates her constitutional rights and freedoms.

When such precedents arise, cases of violations by medical personnel are considered individually. Perhaps they will not be charged with illegally performing an abortion if the conditions for performing the procedure complied with all legal norms and there were no complaints from the patient. But even in this case, they will receive a number of administrative penalties.

Performing an abortion when the woman categorically disagrees with such an action brings into force the provisions of Article 111 of the Criminal Code of the Russian Federation.

About responsibility

Responsibility for illegal artificial termination of pregnancy can be imputed in any case, if one of the conditions under which an abortion can be performed is violated.

The legality of an abortion will be questioned even if it was performed in a medical institution, by a qualified specialist, but without a medical referral .

In this case, the head of the medical institution and other responsible persons who were not involved in the act, but are obliged to prevent such crimes, will be brought to administrative responsibility

Naturally, the investigative authorities determine the corpus delicti in accordance with the objective and subjective characteristics of the criminal act, but any violation of the rules, in this regard, is a risk for the specialist .

Responsibility for the act will be imputed to the person who helped a pregnant woman introduce a solution (usually soap) with a syringe into the uterus, or perform a manipulation to open the cervix, or offered a medicine to promote fetal expulsion.

Unfortunately, women are little informed about the degree of responsibility for such acts, so they often become accomplices of a criminal act .

Currently, there are increasing cases of attempts to spontaneously expel a fetus among minors who do not think about the consequences due to an immature sense of responsibility and lack of awareness. They commit such acts out of fear for their parents’ anger. And friends provide criminal assistance out of a false understanding of the value of friendship.

When is a crime considered over?

The crime is considered completed when the fetus is expelled. The pregnancy ceased to exist. If there was a deliberate criminal intent to artificially terminate the pregnancy, which did not materialize after internal intervention in the uterine cavity, but led to the hospitalization of the victim and the subsequent removal of the disrupted pregnancy in a clinical setting, the accompanying circumstances are taken into account.

The courts may consider such a crime completed or apply the provisions of paragraph 3 of Article 30 of the Criminal Code of the Russian Federation. If there is obviously criminal intent that led to the preparation of a crime, but for objective or subjective reasons was not brought to completion, the norms of paragraph 1 of Article 30 come into play.

Compound

The crime is determined in the general group of intentional criminal acts against human health , in particular against the reproductive health of a pregnant woman. It is characterized by a set of objective and subjective signs that indicate the deliberate nature of the act, which consists in the expulsion of fruit. In this case, the relationship between the actions of the attacker and the termination of the victim’s pregnancy should be identified.

Object of the offense

This is the health of a woman who agreed to an abortion, which was performed:

Illegal - without a license, permission, etc.
In violation of deadlines.
In inappropriate conditions.
A specialist without appropriate qualifications.

Objective side

Conditions for performing an abortion.
Availability of special education and qualifications of the attacker.
The room where the intervention took place.
Instruments used to terminate pregnancy.
Extract from the medical record (medical history).
All the consequences that have occurred.

Special subject

It could be:

a person who does not have sufficient qualifications;
violating deadlines and other established norms;
an unlicensed clinic.

That is, an entity performing abortion services without the legal right to perform them, including on grounds that violate sanitary standards.

Subjective side

This is guilt in the form of direct intent, including motives that aggravate or mitigate the guilty intent:

absence or presence of obvious risks;
selfish motives;
sympathy for the aborted woman.

When assigning responsibility, a combination of objective and subjective characteristics is taken into account.

Responsibility under Art. 123 of the Criminal Code of the Russian Federation

Criminal liability follows in accordance with paragraph 1 of Article 123 of the Criminal Code of the Russian Federation if the case does not contain signs of qualification:

a fine of up to 80 thousand rubles;
or up to six salaries of the convicted person;
forced labor up to 480 hours;
correctional labor for up to 2 years.

If there are qualifying signs in the form of death of the victim, or serious harm to health, which can be expressed in subsequent infertility or serious health problems that are subject to restoration, liability follows in the form of:

Forced labor for up to 5 years. Additionally: with deprivation of the right to hold relevant positions and engage in relevant activities for 3 years or without deprivation of this right.
Imprisonment for up to 5 years. Additionally: with deprivation of the right to hold certain positions and engage in certain activities for 3 years or without deprivation of the right.

Responsibility under the previously existing paragraph 2 of Article 123 of the Criminal Code of the Russian Federation for recidivism has now been abolished.

Composition and qualification of the crime

The crime consists of forcible interference with the reproductive system of a pregnant woman.

However, there is controversy over the completeness of this crime.

On the one hand, it is generally accepted that the crime is completed under the condition of an illegal abortion, by removing the fetus from the uterus, regardless of the harmful consequences for the woman’s health.

On the other hand, the most terrible consequences in terms of their consequences are interventions in the uterus, in which the pregnancy may be disrupted, but not completed , and colossal damage will be caused to the woman’s health, which can lead to her death .

The classification of the crime is carried out within the framework of crimes against human health . It has a multi-pronged approach to the criminal act. This takes into account the level of qualification of the criminal, the consequences that occurred as a result of the artificial expulsion of the fetus, if these led to severe impairment of health or to the death of the aborted woman.

The qualifying features of the crime influence the determination of the severity of the punishment , which can be carried out in accordance with part 1 or part 3 of the relevant article.

If, as a result of manipulations with the uterus, bleeding began, but the patient was taken to the hospital in a timely manner , the crime is qualified in accordance with Part 3 of Art. 30 of the Criminal Code of the Russian Federation as an unfinished criminal act.

What to do if a crime has been committed?

If an investigation into a precedent is required, you need to contact the police department with a request to conduct an investigation. The same applies to situations where the identities of the perpetrators have not been established. You need to contact the territorial department of the police department at the place where the criminal act was committed. If the address is unknown - at the address of your residence.

The statement states:

Name of the police station, information about the investigator accepting the case.
Circumstances of illegal abortion.
All information and papers that can shed light on the commission of a crime.
Request to authorized persons to conduct an investigation and transfer investigative material to the court.
Signature with explanation of surname, date.

Based on the available data, a criminal case will be compiled, which authorized investigators will submit to the court, having established the circumstances of the case.

Legal settlement

Provided that the victim has collected all the necessary documents confirming the guilt of the attacker, and also knows his data and coordinates by which he can be notified of the trial, the application can be submitted to the office of the district court, bypassing the stage of the police department.

According to the jurisdictional provision, the choice of district depends on the location where the criminal act was committed, for example, the clinic where the termination of pregnancy was performed. It is also permissible to go to court at the place of residence of the offender if the abortion was performed at home.

Attention! Without identifying the criminal and proving his guilt, the court does not initiate criminal proceedings.

The application should indicate:

Name of the court.
Information about the victim and the accused, indicating the last name, middle name and place of residence. When making claims against private (public) clinics, indicate their legal addresses, positions and surnames with the initials of officials.
The informational part indicates the circumstances of the pregnancy and the person’s request for an abortion service.
It is explained what the criminal act is, why abortion can be considered illegal, with obligatory reference to the relevant documents.
Describe the consequences of illegal abortion or indicate their absence.
In the pleading part, indicate a request to the court to impose criminal liability for illegal abortion on the guilty person.
At the end, a date and signature are given with a transcript of the surname, and a list of attachments is given.

Attachments include documents that can support the victim’s claims to impute responsibility to the perpetrator. Such documents may include a wide variety of evidence that the fact of illegal abortion was actually used against the applicant.

Medical documents must be attached:

pregnancy certificate;
certificate of termination of pregnancy;
medical statement about intervention in the victim’s uterine cavity;
medical examination report on the severity of the harm caused.

In addition, a petition should be filed with the court to order an examination to establish the fact that abortions were performed illegally by a clinic or an individual who does not have such a right. If the victim has evidence that the termination of pregnancy is carried out by an inappropriate person, it should be presented to the court. In addition, attach receipts and invoices for expenses incurred in connection with the poor quality of the service.

If the period of incapacity for work is prolonged, a certificate from the accounting department about the duration of the loss of the opportunity to receive a full-fledged income. In addition, any witness testimony, photos, videos and other methods of proving the commission of a crime can be used . It is necessary to provide your own passport, and for a representative - a notarized power of attorney.

At the discretion of the victim, a civil claim for recovery of moral damages may be filed within the framework of a criminal case on the basis of the provisions of Article 151 of the Civil Code of the Russian Federation. Also, such a claim can be filed on the basis of an accusation.

Important! Moral damage can only be recovered from a person found guilty by the court.

Such a claim can be filed at any time; claims on non-property issues do not have a statute of limitations. For example, only a few years later a woman will be diagnosed with infertility associated with a poorly performed abortion. If a charge was made for illegal abortion, moral damages may be recovered.

The price of compensation is set at the discretion of the victim. It depends on the degree of moral suffering that was caused. Some common points formed a unified equivalent unit: in the event of death, seek compensation in the amount of one million , not counting material costs, which can be recovered separately.

In other cases, the severity of the consequences and their irreversibility for the victim are calculated. If there are no consequences for reproductive health, compensation is charged for the suffering caused by disappointment, deception and physical torture.

Whatever amount the victim assigns, recognition of its proportionality and final adjustments to the amount remain within the competence of the court.

What does judicial practice show under this article?

Illegal abortions are common, but there is little judicial practice on them. Criminals are rarely brought to criminal liability; more often they are limited to a fine or correctional labor with deprivation of office.

Factors contributing to illegal termination of pregnancy are:

Responsibility for illegal access to computer information and hacking under the Criminal Code of the Russian Federation, Article 272

lowered social status of a woman, failure to provide documents or lack of funds to pay for the procedure at the relevant institution;
age under 18 years (fear of informing parents);
the period is longer than expected (over 12 weeks of the fetus);
established contraindications.

Often, illegal abortion results in the death of the mother. Arbitrage practice:

Citizen S. did not have any special education, but agreed to help her friend M. undergo an illegal abortion at 20 weeks of pregnancy. The reward amount was 5,000 rubles. S. did not have special equipment and worked in unsterile conditions, which led to uterine bleeding in M. As a result of sepsis and inflammation of internal tissues, the victim died. S. admitted guilt and repented. She was sent to a penal colony for 2 years and forced to pay a fine of 80 thousand rubles (the cost of treating the victim from the moment she was admitted to the hospital until her death). Since S. did not have a special education, they did not deprive her of her position. The punishment corresponded to Part 3 of Art. 123.
Citizen P. was approached by citizen N. with a request to have an illegal abortion. He worked as a veterinarian and agreed for a small amount of remuneration (3,000 rubles). P. gave N. several injections into the uterus, which led to the birth of a stillborn child at 19 weeks. The cause of fetal death was pulmonary edema. The police found a dead fetus in a landfill, began investigating and found Petrov. He confessed to his crime and repented, and was convicted under Part 1 of Art. 123 of the Criminal Code of the Russian Federation with a fine of 15 thousand rubles.
Citizen I. contacted therapist M. for an abortion outside of a hospital setting. She was under 18 years old, so she was afraid of judgment from her parents and friends, and also suffered from a lack of support from a young man. She offered to pay the doctor 10,000 rubles to perform an illegal abortion. He agreed, but as a result of fetal defects, the patient began bleeding. M. urgently called an ambulance, confessed to his crime, and was handed over to the police. I. was saved, but it turned out that she would no longer be able to have children due to uterine defects. M. was convicted despite mitigating circumstances in the form of a minor child, whom he was raising alone. He was sentenced to 1.5 years in prison, material damage to I. in the amount of 100,000 rubles, and was deprived of the right to hold a medical position for 3 years.

What decisions are most often made under Article 123

More often, guilty decisions are made. If the offender confesses to his crime, he is immediately sentenced in the courtroom to imprisonment, a fine or correctional labor. Punishment under the article always occurs, no other possible circumstances are taken into account. More often a fine is imposed.

People are sent to a colony only if the victim dies or suffers serious harm, which is rare. The judge deprives a doctor of his position, provided that he had a higher medical education. After a crime and serving a sentence, nursing staff can work under the same conditions.

What are most often aggravating and mitigating circumstances?

The article does not indicate circumstances that may mitigate the punishment. Those that can be aggravating are factors in which the abortion resulted in death or harm to health. Then the punishment gets tougher. If the offender has a minor child whom he is raising alone, this may mitigate the outcome of the sentence.

Worth knowing! Until 2003, the article had a 2nd part, which referred to the repeated conduct of an act by a person previously convicted under this article. Now the part has been removed as no longer valid.