The moment of the beginning and end of life in the criminal law of the Russian Federation

General provisions

Articles 17 and 20 of the Constitution of the Russian Federation state that every person has the right to life, freedom and protection of basic social values received from birth. The main task of the Criminal Code of the Russian Federation is to protect the rights and freedoms of citizens. For this reason, the death of the victim is a qualifying feature of most crimes, and separate chapters of the Criminal Code of the Russian Federation are devoted to intentional and manslaughter.

Human life is a natural physiological process. Accordingly, it has a beginning and an end, which is reflected not only in biology textbooks, but also in legislative acts. Accordingly, criminal acts against life can be committed during the period from birth to death of a particular person.

For example, a citizen was found dead in his apartment. There were also signs of a robbery in the room. The investigator opened a criminal case, suspecting murder and robbery. However, it was later discovered that the owner of the apartment died of a heart attack, after which he was robbed by a neighbor. Accordingly, the latter will be tried only for robbery, because he was not involved in the murder.

From what point does the criminal law protect human life: the paradox of regulation

Rostokinsky Alexander Vladimirovich,

Candidate of Legal Sciences, Associate Professor of the Department of Criminal Law Disciplines, Faculty of Law, State Educational Institution of Higher Professional Education, Moscow City Pedagogical University,

Privalov Alexander Vasilievich,

lawyer of the Moscow Bar Association "Last Watch".

Constitution of the Russian Federation in Art. 2 proclaims the highest value of man, his rights and freedoms. In Part 1 of Art. 20 The Basic Law proclaims everyone’s right to life. Recognition, observance and protection of this right is the responsibility of the state. The latter must protect a complex of personal, inalienable rights and freedoms, as well as civil rights and freedoms not only from illegal restrictions by subjects of power, but also by all other persons. An important mechanism for their protection within the country is criminal law protection. In order for such protection to achieve its goal, it is necessary to clearly define legislatively both the moment of the end and the moment of the beginning of human life.

From a biological point of view, a human being has two periods of life: uterine and extrauterine. Between them is childbirth, which is a rather long process, which can last from 10-12 to 20 hours. The initial stage of the second period is considered to be the beginning of metabolic processes (pulmonary breathing, accompanied by the first inhalation and cry) with the complete separation (extraction) of the newborn from the mother’s body. The protection of emerging life is a deeply moral requirement, but also a prerequisite for the formation of each individual, the acquisition of human qualities and all those human and civil rights that are guaranteed and protected by the international community and the state.

However, the Russian legislator does not directly name the moment from which a person’s life begins. While the final limit of human life is fixed in Part 2 of Article 9 of the Law of the Russian Federation of December 22, 1992 “On Transplantation of Human Organs and (or) Tissues” quite clearly: biological death (brain death)[1]. “Based on this,” writes R. Sharapov, “a person’s legal life is the life of his brain, and the beginning of the life of the brain means the beginning of a person’s life. Consequently, from a legal point of view, the initial boundary of human life today, at a minimum, should be associated with the appearance of a formed mass of brain cells (the birth of the brain), making the fetus viable”[2]. And this happens in the mother’s womb long before the birth of the child itself (by the fifth month of pregnancy)[3].

The validity of this approach was indirectly recognized by our legislator in Article 36 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens dated July 22, 1993. In accordance with it, artificial termination of pregnancy for a period of more than 22 weeks (approximately 5 months of intrauterine development of the fetus) is carried out only if there are medical indications and the woman’s consent[4]. The medical literature describes cases where children born at this stage survived[5].

It should be noted that the Christian Church (without distinction of religion) recognizes abortion, regardless of the reasons for its implementation, as a grave sin. The approaches to this issue of representatives of other major world religions are no different. In the Russian Empire, this operation was recognized in the canonical tradition as infanticide and entailed criminal prosecution both for the specialists who expelled the fetus and for the women themselves who had an abortion. However, the Soviet government in regulating abortion was far ahead of all modern adherents of secular humanism or the primitive “right of life and death.” Thus, by a joint resolution of the People's Commissariat of Health of the RSFSR and the People's Commissariat of Justice of the RSFSR "On artificial termination of pregnancy" dated November 18, 1920, abortion was legalized without significant restrictions. Then, however, they realized it, and by the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR “On the Prohibition of Abortions” dated June 27, 1936, abortion was prohibited and criminal liability was introduced. They existed until the adoption of the Decree of the Presidium of the Supreme Soviet of the USSR “On the abolition of the ban on abortion” on November 23, 1955[6]. During this period, 28 and even 30 weeks were recognized as acceptable periods for abortion.

It should be recognized that this remedy remains one of the most “effective” in conditions of low educational and cultural levels, massive breakdown of families, and the lack of modern knowledge and means of contraception. According to official data from the State Statistics Committee of the Russian Federation, in our country at the beginning of the 21st century, about 2 million abortions are performed annually, while in 1992 their number was close to 3.5 million, and in 1997 it was approximately 2.5 million. At the same time, only 3% of them are done for medical reasons in late pregnancy[7]. The number of abortions performed in illegal and semi-legal clinics is extremely large, and even in Moscow, according to various estimates, amounts to up to 40% of all pregnancy terminations[8].

Currently, by the Decree of the Government of the Russian Federation of August 11, 2003, the number of so-called social indications for artificial termination of pregnancy at a period of 12 to 22 weeks has been reduced from 13 grounds to 5 [9]. But, again, a person who deliberately violates these restrictions is recognized not as a murderer, but as a person who illegally performs an abortion, and even then, only if this person does not have a special medical education. The law says nothing at all about the responsibility of the woman herself who deliberately terminates a pregnancy at such a stage.

A largely paradoxical situation arises: the moment of emergence of the right to an intangible benefit (the right to life), enshrined in federal legislation, is significantly distant in time from the moment of the appearance of this benefit (the origin of life). So, according to Part 2 of Art. 17 and part 1 of Art. 20 of the Constitution of the Russian Federation, the right to life belongs to everyone from birth, and in accordance with Part 2 of Art. 17 of the Civil Code of the Russian Federation, the legal capacity of a citizen arises at the moment of his birth. But the biological birth of a child is a rather lengthy process. As a result of such uncertainty, legislation and law enforcement practice associate a legal fact with the medical criteria for a human live birth, which, as is known, are established after the full birth of a child (his birth as a whole)[10].

The approach of the domestic legislator to resolving the issue of criminal law protection of the life of a newborn person raises even more questions. First of all, it is worth noting such a privileged crime as the murder of a newborn child by a mother (Article 106 of the Criminal Code of the Russian Federation). Not only is this crime not recognized as serious at all, which in itself prevents the implementation of a full range of operational investigative measures for unsolved crimes, but it also opens up a broad road to exemption from criminal liability and punishment for women who simply cannot be called mothers, their amnesties, paroles, etc.

It is more difficult to qualify actions that are expressed in active influence on the fetus in late pregnancy before the onset of labor, with the aim of killing the fetus and (or) causing premature birth. In this case, any intervention that does not have a medical basis is unacceptable, i.e. not intended to save a woman’s life or, at a minimum, to eliminate a real danger to her life. Any other interference is illegal within the meaning of Article 36 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens, but is not prosecuted under criminal law.

In addition, in the current version of Art. 106 of the Criminal Code of the Russian Federation, the moment of newbornness is enshrined in general in contradiction with the dominant position in the theory of criminal law. According to the disposition of the said article, a person’s life begins to be protected, although not during childbirth, but from the moment the child is newborn, which in a medical sense means the complete expulsion (extraction) of a fetus with signs of a live birth (pulmonary breathing, heartbeat, cry, voluntary muscle contractions, etc.). In the doctrine of domestic criminal law, the beginning of criminal legal protection of human life is associated with the moment of the appearance outside the mother’s womb of any part of the body of the expelled (removed) child. Accordingly, the killing of a fetus in the womb before it is born (even if there is a real possibility of saving the life of this child in case of premature birth) is not regarded as a crime against life, but is considered an termination of pregnancy, which can be qualified as a crime against health.

Consequently, a literal interpretation of Article 106 of the Criminal Code of the Russian Federation means that the life of the fetus during the period of its expulsion from the mother’s body until its full birth, not to mention its uterine life, generally falls out of the scope of criminal legal protection of human life[11]. This is how the investigative bodies determine the signs of a crime: on the basis of a forensic medical examination of the discovered corpse of a newborn and the establishment of signs of the onset of spontaneous breathing. Intentional killing of a child during birth by direct impact on his body, from the point of view of current legislation, cannot be recognized as murder, but is an termination of pregnancy. And such an approach, according to R. Sharapov, V. Pankratov and a number of other authors, cannot be considered fair[12]. According to A.N. Popov, which we fully agree with, “the legislator took only half a step in the criminal legal protection of life, ... without linking responsibility for this crime with the criminal legal protection of the life of a child in the womb”[13].

It seems that a solution to the problem of criminal law fixing the moment of the beginning of the protection of life should be sought taking into account foreign, primarily European, legislative experience. For example, the German legislator included seven (!) quite lengthy paragraphs in Section 16 “Criminal acts against life” of the German Criminal Code, including:

1) on liability for termination of pregnancy for periods of more than 12 weeks without a doctor’s conclusion, as well as for periods of pregnancy of more than 22 weeks in the absence of emergency indications (prg. 218 and 218-a);

2) on the responsibility of doctors and staff of special clinics for violating the procedure for conducting preliminary consultations, issuing conclusions and rules for abortion (prg. 218b-c, 219);

3) on responsibility for public campaigning for termination of pregnancy, including advertising of the relevant ones, as well as for the sale of means and items intended for termination of pregnancy (prg. 219a-b)[14]. There is no trace of anything like our Article 106 of the Criminal Code of the Russian Federation in German criminal legislation for a long time: everyone’s life must be protected equally. If the woman in labor is in an affective state, is not fully aware of her actions, etc., then it is necessary to apply the appropriate rules on the limited sanity of the killer, and not ahead of time orient the court towards leniency on formal grounds.

Under the influence of the legislative practice of leading European states, in many countries an abortion performed in the late stages of pregnancy from 12 to 22 weeks is beginning to be considered murder, regardless of the consent and role of the pregnant woman herself in this operation, unless there is a single emergency circumstance, the need to save the woman’s life . Thus, in 2004, the United States adopted the federal “Unborn Victims of Violence Protection Act,” which recognizes the fetus as a human being and has the same rights as a newborn[15].

In our country, judicial practice in cases of infanticide and illegal abortions is formed under the influence of mutually exclusive requirements imposed by society on law enforcement: unconditional protection of every human life and strict punishment for murder, on the one hand, and the requirement of leniency for the “stumbled” woman who “ You can’t ruin your life,” on the other hand. Recognition of the priority of the second requirement inevitably leads to a legalized barbaric downplaying of the value for society of the lives of some citizens (who have done nothing wrong) relative to the value of leniency for the criminal actions of a child-killing mother. By the way, she is in a clearly advantageous position in the criminal process: no one can appeal against a deliberately lenient sentence or the unjustified termination of a criminal case, except the father of the child. And he is usually unknown.

To achieve complete logic in resolving the issue under consideration, it is impossible to do without changing certain constitutional norms. In particular, the norm of Part 2 of Art. 17 of the Constitution of the Russian Federation can be stated as follows: “Fundamental human rights and freedoms are inalienable and belong to everyone from birth, unless otherwise provided by this Constitution.” And the imperative of Part 1 of Art. 20 of the Constitution of the Russian Federation should be supplemented with the following clause: “Everyone has the right to life after reaching 22 weeks of uterine development.” This requires a package of legislative changes that, of course, affect not only the Special Part of the Criminal Code of the Russian Federation. As part of improving the criminal law, it is advisable to:

1. Bring the norms of Article 106 of the Criminal Code of the Russian Federation into line with the priorities of the constitutional and legal protection of the right to life of every child, setting them out as follows: “The murder of a woman carrying a child during a period of more than twenty-two weeks of pregnancy, during or immediately after childbirth, and Likewise, the murder by a mother of a newborn child in a psychotraumatic situation or in a state of mental disorder that does not exclude sanity is punishable by imprisonment for a term of up to six years.”

2. Add to the list of crimes contained in Part 2 of Article 20 of the Criminal Code of the Russian Federation the crime of “murder by a mother of a newborn child” (Article 106) to avoid increasing the liability of adolescents who committed this crime under Article 105 of the Criminal Code.

3. Provide Article 105 of the Criminal Code with a note containing an explanation of the terms and evaluative concepts used in the criminal law, stipulating that “in the articles of this Code, a person is recognized as a child aged more than 22 weeks of pregnancy, a newborn child, or another individual before death.”

4. The corresponding changes will need to be made to the norms of clauses “a” and “g”, part 2 of article 105 of the Criminal Code of the Russian Federation, as well as part 1 of art. 111 of the Criminal Code of the Russian Federation:

a) the sign of paragraph “a” of Part 2 of Article 105 of the Criminal Code of the Russian Federation must also include the murder of a woman who, known to the perpetrator, is in a state of pregnancy at a period of 22 weeks or more.” Liability in each such case must occur taking into account clause “c” of the same part of the article, i.e. helplessness of the second victim;

b) the sign of paragraph “d” of Part 2 of Article 105 of the Criminal Code of the Russian Federation should sound like: the murder of “a woman who, known to the perpetrator, is in a state of pregnancy with a period of no more than 22 weeks”;

c) the corresponding sign of the severity of harm caused to health, provided for in Article 111 of the Criminal Code of the Russian Federation, should be formulated as “termination of pregnancy for a period of no more than 22 weeks.”

It seems that these recommendations will help achieve a social compromise between the idea of absolute inviolability and protection of human life and the moral and legal concept of freedom of motherhood, which includes, among other things, the policy of family planning.

Literature

1. Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1993. No. 2.

2. Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1993. No. 33.

3. Collection of legislation of the Russian Federation. 2000. No. 26.

4. Collection of legislation of the Russian Federation. 2003. No. 33.

5. Civil law. Part.1: Textbook / ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 1998.

6. On the issue of the beginning of criminal law protection of human life // Criminal law. 1999. No. 4.

7. Brief medical encyclopedia: In 3 volumes. T.2. 2nd ed. M., 1989.

8. Krasnopolskaya I., Sokolova I. Murder by diagnosis // Russian newspaper. 2002. August 30.

9. Krylova N.E. Responsibility for illegal abortion and the need for criminal legal protection of “future” life // Bulletin of Moscow University. Episode 11. Law. 2002. No. 6.

10. Commentary on the Criminal Code of the Russian Federation. Ed. 2nd / Ed. Yu.I. Skuratov and V.M. Lebedeva. M., 1999.

11. Pankratov V. Problems of establishing criminal liability for illegal abortion // Criminal law. 2001. No. 3.

12. Popov A.N. Aggravated murders. M., 2003.

13. Russian statistical yearbook. M., 1999.

14. Romanovsky G.B. Epistemology of the right to life. St. Petersburg, 2003.

15. Tasakov S., Shumilov A. Artificial termination of pregnancy (abortion). Criminal legal aspects // Criminal law. 2004. No. 2.

16. Criminal Code of the Federal Republic of Germany (1871) according to hundreds. as of 08/17/1999 / Transl. with him. edited by A.V. Serebryannikova. M., 2000.

17. Sharapov R. The beginning of criminal law protection of human life: experience of legal analysis. // Criminal law. 2005. No. 1.

Received by the editor on August 19, 2009.

The concepts of life and death in the Criminal Code of the Russian Federation

The law does not directly determine the beginning of life. Since abortion is a legal procedure and does not equate to the murder of the fetus, birth can be considered the moment of the beginning of life. As soon as a child is born, he acquires the fundamental rights and freedoms prescribed in the Constitution of the Russian Federation. The life of a newborn is protected from the first seconds after his birth, as specified in Article 106 of the Criminal Code of the Russian Federation.

Causing the death of a child before its birth cannot be classified as murder. Accordingly, the murder of a pregnant woman is considered not as causing the death of two persons, but rather as the murder of a woman who is pregnant. This is indicated in paragraph “d” of Part 2 of Article 105 of the Criminal Code of the Russian Federation.

To determine the end of life, you should refer to the documents of the Ministry of Health. The Order of the Ministry of Health dated March 4, 2003 provides clear instructions regarding the procedure for determining the moment of death of a person. If certain signs are present, medical staff have the right to stop performing resuscitation measures.

Death is the result of the death of an organism. This process is characterized by the following stages:

Clinical death. It involves pathological changes in organs and systems that are completely reversible. Having experienced clinical death, a person can return to a full life.
Agony. This is the process of progressive extinction of external signs of the body’s vital activity, such as consciousness, motor activity, and breathing. Also, a person’s pulse and blood circulation slow down. The process is irreversible and invariably leads to biological death.
Brain death. This circumstance leads to the development of irreversible changes in the brain. Partially or completely reversible changes are observed in other body systems.
Biological death. Involves irreversible changes in all organs and systems. We are talking about the moment of cessation of life as a physiological process.

Thus, the moment of death in the legal sphere is considered to be biological death. Other stages are not grounds for the termination of basic rights and freedoms that arise during a person’s life.

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Murder concept. Determining the moments of the beginning and end of a person’s life

According to the law, murder means the unlawful intentional causing of death of another person. This definition, first enshrined in Russian criminal law, allows us to successfully resolve issues of distinguishing this crime from suicide, causing death by negligence, lawful cases of causing death (for example, in a state of necessary defense) and the destruction of objects of living nature other than humans. The object of murder is social relations that develop regarding the realization by a person of a natural right to life, confirmed by international and constitutional acts, and ensuring the safety of life. The criminal law equally protects the life of every person, regardless of his state of health, moral character, etc. “The right to life is the inalienable right of every person. This right is protected by law. No one may be arbitrarily deprived of life” (Article 6 of the International Covenant on Civil and Political Rights, December 16, 1966); “Everyone has the right to life” (Article 20 of the Constitution of the Russian Federation).

Human life as a certain physiological process has its beginning and end. According to established science and confirmed by the requirements of Art. 106 of the Criminal Code of the Russian Federation, from the point of view, the beginning of life is determined by the time of the onset of labor; Moreover, as practice shows, murder during childbirth objectively becomes possible at the moment the fetus is cut out of the mother’s body. The destruction of the fetus before the onset of labor should be qualified if there are grounds for it under Art. 123 of the Criminal Code of the Russian Federation. The instructions on determining the criteria for live birth, stillbirth, and the perinatal period, approved by Order-Resolution of the Ministry of Health of Russia and the State Statistics Committee of Russia dated December 4, 1992 N 318/190 “On the transition to the criteria for live birth and stillbirth recommended by the World Health Organization” <1>, define the criteria for live birth . A live birth is the complete expulsion or removal of the product of conception from the mother, regardless of the duration of pregnancy, and the fetus after such separation breathes or shows other signs of life, such as heartbeat, pulsation of the umbilical cord or voluntary muscle movements, regardless of whether the umbilical cord is cut or whether the placenta is separated . Establishing the possibility of a live birth in a situation of murder during childbirth is a prerequisite for the correct qualification of the crime. When it is established that it is objectively impossible for a child to be born alive, actions aimed at taking his life during childbirth should be classified based on the intent of the perpetrator as attempted murder (according to the rules of qualification in case of error).

The moment of the end of life is determined by the biological death of a person. In accordance with the Law of the Russian Federation of December 22, 1992 N 4180-1 “On transplantation of human organs and (or) tissues” <1> a death certificate is issued on the basis of a statement of the fact of irreversible death of the entire brain. This rule is confirmed by the Instructions for ascertaining the death of a person based on the diagnosis of brain death, approved by Order of the Ministry of Health of Russia of December 20, 2001 N 460 <2>. These documents actually equate brain death and biological death of a person. However, in the Instructions for determining the criteria and procedure for determining the moment of human death and cessation of resuscitation measures, approved by Order of the Ministry of Health of Russia of March 4, 2003 N 73, brain death and biological death as stages of the dying process are distinguished. Biological death is characterized by postmortem changes in all organs and systems that are permanent, irreversible, and cadaveric in nature. Brain death is not equivalent to biological death, but it provides grounds for declaring the death of the organism as a whole. Establishing the fact of a person’s death from the standpoint of a criminal legal assessment of the crime is necessary: a) to qualify the murder as a completed crime; b) to distinguish legitimate cases of organ and (or) tissue transplantation from murder; c) to qualify as attempted murder actions aimed at causing the death of an already deceased person.

As a rule, murder is committed by performing active physical actions that violate the anatomical integrity of human organs and (or) tissues. In a situation where the intent to kill arises in the perpetrator directly during the commission of another crime against the health of the victim and thus a crime that began as less serious develops into a more serious one, everything done is covered by the elements of murder and does not require additional qualification under the articles on liability for crimes against health <1>. Likewise, no additional qualifications are required if, in the process of depriving the victim of his life, a method is chosen that involves causing harm to his health.

It is also possible to commit a murder through informational influence (for example, murder should be classified as intentionally provoking a heart attack in the victim by giving him unpleasant news resulting in death). Responsibility for murder committed by omission is possible only in cases where the perpetrator should have and could have performed certain actions aimed at preserving the life of the victim (for example, murder by omission should be classified as causing the death of a newborn child as a result of the mother’s refusal to feed him ). The murder is considered completed at the moment of the death of the victim. There may be a time lag between the act and the consequence. At the same time, as the Supreme Court of the Russian Federation points out, a significant period of time elapsed between the intentional infliction of bodily harm and the death of the victim does not in itself exclude the possibility of the perpetrator’s intent to take the life of the victim.

Causing damage to vital organs of the body, which, as a rule, entails the death of the victim, but in a particular case did not lead to death due to a random combination of circumstances that did not depend on the will of the perpetrator, should be classified as attempted murder <1>. At the same time, attempted murder is possible only with direct intent, i.e. when the act indicated that the perpetrator was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of the death of another person and wanted it to occur, but the death did not occur due to circumstances beyond his control (due to the active resistance of the victim, the intervention of other persons, timely provision of medical assistance to the victim, etc.).

From the subjective side, murder is characterized only by intent (direct or indirect). The perpetrator is aware of the social danger of an act aimed at taking the life of another person, foresees the possibility or inevitability of death and desires or consciously allows or is indifferent to the possible death of the victim. A person who had the intent to kill a certain person, who mistakenly killed another person, is liable for murder <1>, since the error of the subject of the crime regarding factual circumstances that are not related, against his will, to the composition of this crime, does not have any impact on the form of guilt . Such an error cannot eliminate intentional guilt, since in order to have intent in a murder, it is necessary to foresee that the actions taken may result in the death of a person <2>.

When qualifying, the issue of distinguishing murder with indirect intent from careless causing of death <1>, as well as from cases of serious bodily harm resulting in death due to negligence <2> deserves special attention when qualifying. The Resolution of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” states that when deciding the direction of the intent of the perpetrator, one should proceed from the totality of all the circumstances of the crime and take into account, in in particular, the method and weapon of the crime, the number, nature and location of bodily injuries (for example, injuries to vital organs of a person), as well as the behavior of the perpetrator and the victim preceding the crime and subsequent behavior, their relationship (clause 3). When determining the content of the intent of the perpetrator in cases of crimes against the person, the court must proceed not only from the explanations of the accused, but also from the totality of all the circumstances of the crime committed <3>.

Crimes against human life and health

Criminal acts committed against human life and health are enshrined in Chapter 16 of the Criminal Code of the Russian Federation. This legislative act provides an extensive list of crimes that can be divided into three groups:

Crimes against life, enshrined in articles 105–110.2 of the Criminal Code of the Russian Federation. The law protects the life of any person, regardless of the state of his physical or mental health, as well as the degree of socialization. In the legislation of the Russian Federation, euthanasia (accelerating the death of a citizen at his request) is prohibited and is equated to murder.
Crimes against health (Articles 111–118 of the Criminal Code of the Russian Federation). Here are criminal acts aimed at inflicting light, medium and serious bodily harm, torture, and contracting diseases.
Crimes against life and health (enshrined in Articles 119–125 of the Criminal Code of the Russian Federation). This includes cases of infection with sexually transmitted diseases, illegal termination of pregnancy, leaving someone in danger, and failure to provide assistance to a sick person.

In crimes against life, the offender and the victim are always different people. The Criminal Code does not provide punishment for attempted suicide.

Criminal law. Training

1. Kidnapping of a person is considered a completed crime: from the moment of actual deprivation of liberty from the moment of satisfaction of the demands put forward by the kidnapper from the moment of removal from his natural habitat and relocation from the moment of the use of violence

2. Which of the signs is not a sign of smuggling: movement across the customs border of the Russian Federation of objects other than or with concealment from customs control; movement of objects across the customs border of the Russian Federation with non-declaration or false declaration; movement of objects across the customs border of the Russian Federation with the fraudulent use of documents or means of customs identification; movement across the customs border of the Russian Federation of objects other than or with concealment from customs control with a breakthrough of the customs border

3. Misappropriation and embezzlement differs from theft: the object of the criminal assault, the method of taking possession of property, the form of guilt, the moment of completion

4. Infliction of physical or mental suffering through systematic beatings refers to: torture to beatings to infliction of moderate harm to health to infliction of minor harm to health

5. Violent acts of a sexual nature (Article 132 of the Criminal Code of the Russian Federation) are considered a completed crime: from the moment of the use of physical or mental violence from the moment of the threat of violence from the moment of the use of violence and the end of actions of a sexual nature from the moment of the use of violence and the beginning of actions of a sexual nature

6. What is the receipt of a bribe (Article 290 of the Criminal Code of the Russian Federation): in receiving a bribe for actions (inaction) in favor of the bribe giver, if such actions (inaction) are within the official powers of the official, or he can facilitate such actions (inaction), for general patronage or connivance in service in the receipt by an official personally or through an intermediary of a bribe for actions (inaction) in favor of the bribe giver for general patronage or connivance in service in receiving a bribe for actions (inaction) in favor of the bribe giver, if such actions (inaction) include in the official powers of the official, or he may contribute to such actions (inaction). in the receipt by an official personally or through an intermediary of a bribe for actions (inactions) in favor of the bribe giver, if such actions (inactions) are within the official powers of the official, or he can facilitate such actions (inactions), for general patronage or connivance in the service

7. Possession of narcotic drugs means: intentional actions aimed at transferring narcotic drugs. funds into the possession of another person intentional actions resulting in the receipt of a narcotic drug ready for consumption intentional actions aimed at obtaining possession of a narcotic drug intentional actions related to the possession of narcotic drugs

8. Which of the following crimes does not apply to computer crimes: Violation of the rules for operating a computer, computer system or their network. Disclosure of computer information Illegal access to computer information Creation, use and distribution of malware

9. Theft of someone else’s property is: secret theft of someone else’s property theft of property using one’s official position open theft of someone else’s property taking property by deception

10. The end of life is recognized as the moment: the cessation of breathing and heartbeat, the appearance of cadaveric spots. disappearance of pulsation in large arteries ; irreversible organic changes in the brain and central nervous system

11. A knowingly false denunciation differs from slander: according to the subject according to the subjective side according to the purpose according to the victim

12. The subject of crimes in the field of computer information is: Computers as a means of committing a crime; computer programs; information on computer media; computer information on any media;

13. Which object is generic in crimes against life and health: constitutional rights and freedoms of man and citizen life and health personality public safety and public order

14. The distinction between a knowingly false denunciation (Article 306 of the Criminal Code of the Russian Federation) and slander (Article 129 of the Criminal Code of the Russian Federation) is carried out: by object by subject at the place of commission of the crime by the subjective side

15. Who is the subject of high treason (Article 275 of the Criminal Code of the Russian Federation): a foreign citizen or a stateless person who has reached the age of 16, a citizen of the Russian Federation who has reached the age of 18, a foreign citizen or a stateless person who has reached the age of 14, a citizen of the Russian Federation who has reached the age of 16

Corpus delicti

To bring an attacker to justice, his actions must contain elements of a crime. It is based on four features:

Subject of the crime. We are talking about a criminal who planned and carried out a crime. A sane person who has reached the age of 16 can be held criminally liable. When committing particularly serious crimes, criminal liability may begin at the age of 14.
Object of crimes. These are public institutions against which criminal acts are committed. In this case, it is human health and life. Human health is defined by law as the totality of the physical, mental and social well-being of an individual. Human health is protected from the beginning of his birth until death.
Subjective side. It is the attitude of the criminal to the crime. An important concept in this case is direct intent. That is, the attacker must be aware of the negative consequences of his actions and desire their occurrence. In addition, attacks on life and health can be committed with indirect intent or unintentionally. In the latter case, the preventive measure may be mitigated by a court decision.
Objective side. These are external manifestations of a crime that are available for analysis and study. They can be expressed in action and inaction, a cause-and-effect relationship between actions and consequences. Also, the objective side is the method, place, setting, time, and instruments of committing a crime.

The above signs are enshrined in the Criminal Code of the Russian Federation. To bring a citizen to criminal liability, all the elements of a crime must be present. If at least one of them is absent, the criminal case is closed.

Life as an object of criminal legal protection

In the science of criminal law, there is no single approach to defining the object of a crime against life, which includes murder. Some authors believe that the direct object of murder is social relations to protect human life. The right to life is considered by them as an objective right of every person, which is opposed by the duty of all other persons to refrain from encroaching on the life of another person [1].

A. N. Krasikov expressed the point of view according to which, in the case of murder, there is an encroachment, first of all, on the rights of the person, and not on social relations. He considers the right to life to be the direct object of assault during murder [2].

N.I. Zagorodnikov adheres to the opposite point of view, recognizing the corresponding social relations for the protection of life as the object of murder. He writes: “When we say life, health, we do not mean the physical meaning of “life”..., but understand by these terms the totality of social relations related to the protection of the individual” [3].

A number of authors consider human life as an object of encroachment along with social relations. Thus, according to Yu. A. Demidov, “the value of life or health is immeasurably higher than the totality of social relations being violated... Considering the value relationship, on the one hand, of social relations that may be damaged by these crimes, and on the other, life and human health, the law pointed to the latter as objects protected by the rules on liability for murder and for bodily injury. Another theoretical solution to this issue—recognizing only social relations as a protected object—contradicts the ethical provisions on the value of a person and the direct instructions of the criminal law” [4].

The latter point of view seems more convincing to us, since human life is not only a subjective right protected by legal norms, but also an independent social, spiritual and biological value. Since murder deprives a person of this value (life), the question inevitably arises of when its protection begins and when it stops. Understanding these time frames is directly related to the beginning and end of life. It is within these limits that liability for murder and other attacks on life may occur.

Of significant practical importance for the criminal legal assessment of an act as a crime against life is the determination of the boundaries of life, that is, the moment of its beginning and end. On the issue of the beginning and end of life, many different points of view can be found in the legal and medical literature. Thus, A. A. Piontkovsky believed that the moment of the beginning of an infant’s independent life is either the beginning of breathing or the moment of separation of the umbilical cord [5].

S.V. Borodin shares the same opinion, believing that the moment of the beginning of life should be considered the moment from which the child’s body is able to function independently and is completely separated from the mother’s body [6]. If we accept it as correct, then causing the death of an already born child, who is still connected to the mother’s body by the umbilical cord, or a child during childbirth, whose head has already appeared from the mother’s womb, would not be considered murder in the criminal legal sense.

However, such a conclusion contradicts the current Art. 106 of the Criminal Code of the Russian Federation, which establishes liability for the taking of a child’s life by a mother immediately after childbirth or during it, called murder.

A. A. Zhizhilenko took a more definite position. He believed that until labor began, there would be killing of the fetus, and not murder, but as soon as labor began, especially if part of the baby came out, we can talk about the birth of a person, whose murder should be punishable [7]. According to biologists, the life of a person as a biological individual begins with the fusion of the nuclei of male and female germ cells and the formation of a single nucleus containing unique genetic material.

From this point of view, abortion at any stage of pregnancy will have to be recognized as the intentional termination of a person’s life as a biological individual. This point of view has a right to exist, but it should not lead to the same criminal legal protection of human life and fetal life. In our opinion, the position of N.I. Zagorodnikov is more justified, who believes that the beginning of a person’s life should be recognized as the beginning of physiological contractions, since this moment indicates that the fetus is sufficiently mature and has all the necessary qualities for life.

The normative definition of the moment of the beginning of life is contained in Part 1 of Art. 53 of the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” [8] and is determined by the moment of separation of the fetus from the mother’s body through childbirth. The medical criteria for live birth are defined in the Order of the Ministry of Health and Social Development of Russia dated December 27, 2011 No. 1687n “On the medical criteria for birth, the form of the birth document and the procedure for its issuance” [9].

Medical criteria for birth are: 1) gestational age of 22 weeks or more; 2) the child’s body weight at birth is 500 grams or more (or less than 500 grams in case of multiple births); 3) the child’s body length at birth is 25 cm or more (if the child’s body weight at birth is unknown); 4) gestational age is less than 22 weeks or the child’s body weight at birth is less than 500 grams, or if the birth weight is unknown, the child’s body length is less than 25 cm, - with a life expectancy of more than 168 hours after birth (7 days).

Signs of a live birth include breathing, heartbeat, pulsation of the umbilical cord or voluntary muscle movements, regardless of whether the umbilical cord is cut or whether the placenta has separated.

Thus, the beginning of life, and therefore the beginning of its criminal legal protection, is the time of separation of the newborn from the mother’s body, indicating that the fetus is mature enough for independent life. This position is most consistent with the current criminal law.

The moment of the end of life, i.e. the moment of death, is normatively defined in Art. 9 of the Law of the Russian Federation of December 22, 1992 No. 4180–1 “On transplantation of human organs and (or) tissues” [10] and is associated with the irreversible death of the entire brain (brain death).

The conducted study of the problems of criminal legal protection of life allows us to draw a number of conclusions that, in our opinion, have a definite theoretical and practical significance.

Human life as an object of criminal legal protection cannot be recognized as a set of social relations that ensure the protection of human biological existence. Human life is one of the fundamental values that is given to a person and the system of state legal means is aimed at protecting it.
Legal protection of life as a biological value is ensured within the limits of its actual existence. These limits are limited by the birth of a person and his death.
Despite the diversity of opinions among lawyers, doctors, and biologists, the beginning of life should be recognized as the beginning of childbirth, and its end as biological death. It is within these time boundaries that an attack on the life of a specific person can be carried out, which is recognized as murder.

Literature:

Krieger G. A. On the issue of distinguishing between murder in a state of passion and murder committed when the limits of necessary defense were exceeded / G. A. Krieger // Bulletin of Moscow University. - 1961. - No. 1. - P. 35–39.
Krasikov A. N. Criminal law protection of human rights and freedoms in Russia / A. A. Krasikov. - Saratov, 1996. - P. 2. 174 p.
Zagorodnikov N.I. The concept of the object of a crime in Soviet criminal law / N.I. Zagorodnikov // Proceedings of the Military Law Academy. - 1951. - No. 13. - P. 42–45.
Demidov Yu. A. Man is an object of criminal legal protection / Yu. A. Demidov // State and law. - 2002. - No. 2. - P. 9–12.
Piontkovsky A. A. Object of the crime. Soviet criminal law. General part / A. A. Piontkovsky. - M., 1959. - 174 p.
Borodin S.V. Crimes against life / S.V. Borodin. - M., 1999. - 290 p.
Zhizhilenko A. A. Crime and its factors // Russian criminological view. - M., 2008, No. 4. - P. 36–63.
On the fundamentals of protecting the health of citizens in the Russian Federation: federal law of November 21, 2011 No. N 323-FZ: according to comp. as of July 29, 2022 // Collection of legislation of the Russian Federation. - 2011. - No. 48. - Art. 6724.
On the medical criteria for birth, the form of the birth document and the procedure for its issuance: order of the Ministry of Health and Social Development of the Russian Federation dated December 27, 2011 No. 1687n: according to comp. as of September 2, 2013 // Russian newspaper. — 2012. — March 23. - No. 64.
On transplantation of human organs and (or) tissues: Law of the Russian Federation of December 22, 1992 No. 4180-I: according to comp. as of May 23, 2016 // Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. - 1993. - No. 2. - Art. 62.