Murder is the taking of a person’s life as a result of the action or inaction of a criminal. The action is the use of bladed or firearms, chemicals (sulfuric acid), arson or freezing of the victim. Inaction – leaving a person in dangerous conditions, failure to provide accessible assistance.
Murder can be intentional or unintentional; for each case, the legislation of the Russian Federation has a clause, according to which the court makes a decision on the case of the accused.
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Types of murders
The Russian Federation guarantees each of its citizens, regardless of their age and position in society, the right to life. Criminal law is aimed at protecting and ensuring the safety of the individual.
At all times, life was considered the highest value, and deprivation of it was sometimes punished cruelly - in ancient times, a murderer was sent to the gallows or had his head cut off. Later, the electric chair became the weapon of death penalty. Nowadays, in many developed countries, the death penalty as a punishment for murder has been abolished.
There are countries where execution by firing squad is still practiced. An example would be China, where the death penalty is imposed not only for murder, but also for pimping, counterfeiting banknotes, and poaching.
Deprivation of life may have aggravating circumstances or, conversely, mitigating circumstances. Or without them at all.
Aggravating factors include factors that negatively characterize the killer and add to his punishment:
- murder of a minor;
- murder of a pregnant woman;
- deprivation of life committed with extreme cruelty;
- murder with rape;
- murder due to racial or religious hatred;
- mass kill;
- deprivation of life for the purpose of selling the organs of the deceased.
What are the mitigating circumstances for murder? For example, when a husband kills his wife’s lover or one of the family members takes the life of an alcoholic father who abuses his household. Punishment for murder under mitigating circumstances is prescribed in Articles 106-108.
Murder of a newborn child by a mother
The object in this case is a newborn up to four weeks of age. The subject is his mother, who is 16 years old. Murder can be committed with or without premeditation, during or immediately after childbirth, as a result of the critical mental state of the mother in labor or the state of insanity at the time of the crime.
Murder committed immediately after childbirth is associated with negative emotions during the birth process. The woman experiences severe pain for a long time, fatigue from endless contractions, and fear for her life and health. As a result, she may kill the child, believing that it was he who caused her physical and moral suffering.
As a rule, a woman experiences enormous stress during the postpartum period. If we add to this situation the negative impact of the environment on her emotional state, the woman may experience a mental disorder.
The reason for changing the psycho-emotional state of a woman in labor may be:
- cheating on a spouse or his leaving the family;
- denial by the spouse of his paternity;
- fear of being left with a child on the street, without money and housing;
- pressure from loved ones;
- fear of being judged;
- unwillingness to raise a child born from a rapist.
As we see, there are a sufficient number of reasons.
Murder can be committed either during the birth itself, or after the birth as a result of physical force, for example, a blow to the head with a blunt object, knife wounds, strangulation or drowning of the baby. Also, an offense can be committed as a result of inaction: the mother stops feeding the child or leaves him alone for a long time.
This murder provides for punishment - restriction of freedom for a term of two to four years, or forced labor for up to five years, or imprisonment for the same term.
5. MURDER UNDER MITIGATING CIRCUMSTANCESTypes of murder under mitigating circumstances
1. Murder of a newborn child by a mother: direct object
is the life of a newborn child. A child is considered a newborn according to medical practice for four weeks after birth.
Objective side
consists of three alternative acts:
murder of a newborn child during or immediately after childbirth
- murder during childbirth can occur before the end of the physiological process of childbirth, and murder immediately after childbirth - immediately after the end of the physiological process of childbirth.
It does not matter whether the murder was planned even before the birth or the intent to kill suddenly arose during childbirth or immediately after childbirth; murder of a newborn child in a psychotraumatic situation - the situation can be caused by any factors
- financial difficulties, a father’s abandonment of his child, fear of parents, etc.;
murder in a state of mental disorder, which does not preclude sanity,
occurs in the case when, during the commission of a crime, due to a mental disorder, the mother could not fully understand the actual nature and social danger of her actions (inaction) or control them.
Subject of the crime
– special – mother of a newborn.
Subjective side –
direct or indirect intent.
2. Murder committed in a state of passion: by the direct object
is the life of the person who caused the state of passion.
Signs of the objective side:
a) it is committed in a state of sudden, strong emotional excitement;
b) the state of passion is caused by: violence; bullying; serious insult on the part of the victim; other illegal or immoral actions (inaction) of the victim; a long-term psychotraumatic situation that arose in connection with the systematic illegal or immoral behavior of the victim.
The following circumstances indicate the suddenness of the onset of strong emotional disturbance:
occurs immediately as a reaction to the behavior of the victim; There is no gap in time between the murder and the actions of the victim that caused the state of passion.
Subjective side
– direct or indirect affected intent.
The subject of the crime
is a person in a state of passion.
3. Murder committed when exceeding:
a) the limits of necessary defense
– occurs in the case of a clear, obvious discrepancy between the defense and the nature and danger of the attack, when harm is deliberately caused to the offender unnecessarily;
b) measures necessary to apprehend the person who committed the crime,
– may be the case if the measures necessary to detain a person who committed a crime clearly did not correspond to the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention, when the person was unnecessarily caused clearly excessive harm not caused by the situation.
The immediate object
is the life of the offender, the life of the detainee.
Subjective side
- direct or indirect intent.
The subject
is the person who repels the attack, the person who detains.
Criminal liability for these crimes begins at the age of 16.
Table of contents
Murder in the heat of passion
Affect is a state resulting from strong negative emotions such as anger, irritation, shock or fear. Killing as a result of this condition occurs immediately after the situation that caused the condition. If some time has passed, the court will not take this fact into account to reduce the punishment.
A bright, uncontrollable outburst of emotions can occur under the following circumstances:
- threat or blackmail of the victim;
- prolonged moral or physical humiliation or bullying;
- immoral behavior towards the victim;
- cumulative effect from the immoral behavior of the object;
- insult, ridicule, etc.
Murder in the heat of passion is not fully punished, since the citizen who violated the law could not control his actions at that time. As a result of severe mental shock, the subject loses the ability to make a forecast and evaluate his actions, in other words, he loses self-control and does not realize what he is doing.
Proving that the killer was in an uncontrollable state at the time of the crime can be difficult. Testimony from witnesses who can confirm his condition during and after the murder is usually required.
This condition, which indicates severe emotional shock, includes a number of signs:
- physical condition (pallor of the skin, increased sweating, weakness or chills are noted);
- the criminal is lost in space and time;
- sometimes the outburst of emotions can be so strong that, having spent all his energy in a short period of time, the killer goes to bed.
In addition to witness testimony, the court may order a medical examination.
Examples of murders committed in a state of passion:
- The stepfather abused his stepdaughter for a long time. During one of the quarrels, she could not stand it and inflicted several fatal blows on him with a knife. This is an example of cumulative affect.
- While drinking alcohol, a conflict occurred between the men, as a result of which the victim insulted the mother of the accused. This is an example of murder due to insult.
- The husband came home early from work and found his wife in bed with a friend. An example of affect as a result of a wife's immoral behavior.
- The grandmother blackmailed her grandson with her will for the apartment in exchange for help with the housework. During one of the conflicts that arose, she threatened that the will would be drawn up in the name of another relative. The grandson, who had long fulfilled the elderly woman’s every whim, could not contain his emotions and hit her on the head with a heavy figurine. This is an affect due to blackmail.
Murder under mitigating circumstances
The concept of system and the meaning of a special part of criminal law
the concept of a special part of criminal law, its meaning and tasks. Unity of special and general parts. System of the special part of criminal law
A special part of criminal law is a system of norms established by criminal law that define an exhaustive list of socially dangerous acts, their characteristics, as well as the types and limits of punishment provided for their commission.
Signs of a Special Part:
• system of norms established by criminal law;
• establishes an exhaustive list of crimes;
• determines the limits of punishment.
Meaning of the Special Part:
• comprehensively and accurately describes the elements of crimes;
• only the corpus delicti constitute the basis for criminal liability;
• the limits and types of punishment for a specific crime are clearly defined;
• elements of crimes are arranged depending on the importance of interests (person, society, state).
The tasks of the Special Part are to protect the most important social relations, protect the peace and security of mankind and prevent crimes (general and private prevention).
The following are protected from criminal attacks (Part 1, Article 2 of the Criminal Code of the Russian Federation):
• human and civil rights and freedoms;
• property;
• public order and public safety;
• environment;
• constitutional system of the Russian Federation.
The system of the Special Part of Criminal Law is a set of criminal law norms:
• located in an order justified by the interests of the individual, society, and state;
• combined into sections and chapters based on generic and specific objects;
• defining features of specific crimes;
• establishing the types and amounts of punishment.
Principles for constructing the Special Part:
• the smallest element of the system is the article from which subsystems (sections and chapters) are formed;
• the basis for combining into sections is a generic object, into chapters – a specific object;
• stability is ensured by a complex procedure for introducing changes.
The construction of the Special Part of the Criminal Code is based on the principle of the generic object of crimes. In accordance with this principle, the Special Part is divided into sections. Types of crimes that are homogeneous in nature and essence are combined into six sections. The sections of the Special Part of the Criminal Code are:
VII. "Crimes against the person";
VIII. “Crimes in the economic sphere”;
IX. “Crimes against public safety and public order”;
X. “Crimes against state power”;
XI. “Crimes against military service”;
XII. "Crimes against the peace and security of mankind."
A special part of the Criminal Code (and this is its fundamental significance) is built in strict accordance with that enshrined in Art. 3 of the Criminal Code by the principle of legality, the essence of which is that the criminality of an act, as well as its punishability and other criminal legal consequences are determined only by the Code. The application of criminal law by analogy is not allowed, but according to Art. 8 of the Criminal Code, the basis for criminal liability is the commission of an act containing all the elements of a crime provided for in the articles of the Criminal Code.
The concept of types of principles and meaning of qualification of a crime
Qualification of a crime is the establishment in a socially dangerous act committed of the signs of the corresponding corpus delicti provided for by criminal law. This is also a legal assessment of an act and, as a legal assessment of an act, the qualification of a crime must contain an exact indication of the articles, parts, clauses of articles of both the General and Special Parts of the Criminal Code.
Qualification of a crime is a legal determination of the correspondence of the actual circumstances (signs) of a socially dangerous act to the elements of a crime provided for by a criminal law norm.
Types of qualifications:
1. official or legal - carried out in a specific criminal case by persons authorized by the state.
2.informal or scientific - carried out by scientists, students and any other persons privately
The corpus delicti is the only legal basis for qualifying the crime (Article 8 of the Criminal Code). Qualification by object - generic, specific, and immediate main object are taken into account; may be influenced by the immediate additional object, the immediate optional object, the subject of the crime and the victim.
Qualification on the objective side - a socially dangerous action or inaction of a person, harmful consequences, a causal relationship between a socially dangerous action (inaction) and harmful consequences, place, time, method, setting, instruments and means of committing a crime.
Qualification on the subjective side - guilt in the form of intent and negligence, motives, purposes of committing a crime.
Qualification by subject - an individual, sanity or limited sanity (mental disorder that does not exclude sanity), reaching the age of criminal responsibility; signs of a special subject.
The classification of the crime depends on the types of crimes:
1.according to the degree of public danger - basic and qualified compounds (mitigating and aggravating)
2.according to the design of the objective side of the crime - material, formal and truncated
3.according to the method of description - simple and complex composition - with 2 or more objects, two mandatory actions, two forms of guilt, two crimes, etc.
4.according to the degree of generalization - general and special formulations
5.by coincidence and difference of characteristics - delimitation of compositions, competition of norms
Qualification value:
1. social and moral - correct qualification fosters respect for the activities of the court and authorities, the law, forms a proper legal consciousness, a legal culture of condemnation of crimes and the fight against them
2. criminal law – qualification is the type and stage of law enforcement activity, delimitation of criminal actions from inviolable ones, imposition of fair punishment, etc.
3. criminological – criminal statistics, state and dynamics of crimes, development of specific preventive measures.
4.sociological – too
The process of qualifying crimes is a complex mental activity, subject to the laws of logic and consisting of several successive stages.
The stages of the qualification process are to establish:
• factual circumstances of the case about the committed act and the subject of the crime;
• criminal law providing for a qualified act;
• the identity of the characteristics of a qualified socially dangerous act with the characteristics of a certain crime.
Murder
Murder means intentionally causing the death of another person.
The immediate object of murder is human life
Objective side of the murder:
v an act, which can be either in the form of action or inaction, aimed at causing the death of another person;
v as a result of this act, socially dangerous consequences must occur in the form of the death of another person;
v there must be a necessary causal connection between the act and the consequences.
Material composition - the murder is considered completed from the moment of the death of the victim. It does not matter when death occurred: immediately or after some time. Actions of a person directly aimed at causing the death of another person, if due to circumstances beyond the control of the perpetrator they did not lead to this result, are qualified as attempted murder.
The subjective side of murder is characterized by guilt in the form of direct or indirect intent. Attempted murder is possible only with direct intent.
On the subjective side, murder differs from the intentional infliction of grievous bodily harm resulting in the death of the victim, in that in murder the intent of the perpetrator is aimed at depriving the victim of life, and in the commission of a crime under Part 4 of Art. 111 of the Criminal Code of the Russian Federation, the attitude of the perpetrator towards the death of the victim is expressed in negligence.
The subject of the murder is a sane individual who has reached the age of 14 years.
Types of murder:
1) simple – murder without qualifying or privileged characteristics (Part 1 of Article 105 of the Criminal Code of the Russian Federation);
2) qualified – murder with aggravating circumstances, i.e. murder:
Ø two or more persons;
Ø a person or his relatives in connection with the performance of official activities by this person or the performance of public duty;
Ø a person who is known to the perpetrator to be in a helpless state, as well as associated with the kidnapping of a person or the taking of a hostage;
Ø a woman who is known to the perpetrator to be pregnant;
Ø committed with particular cruelty;
Ø committed in a generally dangerous manner;
Ø committed by a group of persons, a group of persons by prior conspiracy or an organized group;
Ø for mercenary reasons or for hire, as well as associated with robbery, extortion or banditry;
Ø for hooligan reasons;
Ø in order to hide another crime or facilitate its commission, as well as one involving rape or sexual assault;
Ø based on national, racial, religious hatred or enmity or blood feud;
Ø for the purpose of using the victim’s organs or tissues;
murder under mitigating circumstances
1. Murder of a newborn child by a mother:
The immediate object is the life of a newborn child. A child is considered a newborn according to medical practice for four weeks after birth. The objective side consists of three alternative actions:
- murder of a newborn child during or immediately after childbirth - murder during childbirth can occur before the end of the physiological process of childbirth, and murder immediately after birth - immediately after the end of the physiological process of childbirth. It does not matter whether the murder was planned even before the birth or the intent to kill suddenly arose during childbirth or immediately after childbirth;
- murder of a newborn child in a psychotraumatic situation - the situation can be caused by any factors - financial difficulties, a father’s abandonment of his child, fear of parents, etc.;
- murder in a state of mental disorder that does not preclude sanity - occurs in the case when, during the commission of a crime, due to a mental disorder, the mother could not fully understand the actual nature and social danger of her actions (inaction) or control them. The subject of the crime is a special one - the mother of a newborn. The subjective side is direct or indirect intent.
2. Murder committed in a state of passion:
The object is the life of the person who caused the state of passion. Signs of the objective side: a) it is committed in a state of sudden strong emotional excitement; b) the state of passion is caused by: violence; bullying; serious insult on the part of the victim; other illegal or immoral actions (inaction) of the victim; a long-term psychotraumatic situation that arose in connection with the systematic illegal or immoral behavior of the victim. The suddenness of the onset of strong emotional disturbance is evidenced by the following circumstances: it occurs immediately as a reaction to the behavior of the victim; There is no gap in time between the murder and the actions of the victim that caused the state of passion. The subjective side is direct or indirect affected intent.
The subject of the crime is a person in a state of passion.
3. Murder committed when exceeding: a) the limits of necessary defense - occurs in the case of a clear, obvious discrepancy between the defense and the nature and danger of the attack, when harm is deliberately caused to the offender unnecessarily; b) measures necessary to detain a person who committed a crime - may be if the measures necessary to detain a person who committed a crime clearly did not correspond to the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention, when the person is unnecessarily harmed clearly excessive harm not caused by the situation.
The immediate object is the life of the offender, the life of the detainee. The subjective side is direct or indirect intent.
The subject is the person who repels the attack, the person who detains. Criminal liability for these crimes begins at the age of 16.
Murder by excess of self-defense
The ability to stand up for your life in the event of an attack is the right of every citizen of the Russian Federation. It is enshrined constitutionally and has one “but”. In self-defense, the victim can only use those measures that are not prohibited by law.
Exceeding self-defense occurs as a result of overestimating the current situation and one’s capabilities. For example, the killing of a thief while attempting to pickpocket, or the victim killing an attacker who is much weaker than him physically.
If a physically strong and healthy man uses all his force against a pregnant woman or a teenager, he will undoubtedly exceed the permissible limit of self-defense.
The following will not be considered self-defense:
- if a person first provokes a conflict and then begins to defend himself;
- if the attacker stopped his threats and retreated, and the victim continues to attack;
- if the attempt occurs not on life and health, but on material assets; It will not be considered self-defense if the victim's cell phone was stolen and the victim responded by committing murder.
It can be very difficult to prove that the killer did not exceed the necessary measures during the attack. It is also necessary to interview witnesses who can confirm that the victim had no other choice.
Otherwise, the victim becomes the accused and is liable to the fullest extent of the law.
The Supreme Court expanded the interpretation of mitigating circumstances
The Supreme Court of the Russian Federation gave a number of important interpretations on the problems of criminal proceedings in the first 125-page review of its judicial practice this year [], published on April 14.
In particular, in the chapter of the review devoted to sentencing in criminal cases, the Supreme Court notes that active assistance in the detection and investigation of a crime is taken into account as a mitigating circumstance provided for in paragraph “g” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, regardless of the motives, prompted the person to take these actions.
According to the court verdict, T. was convicted under paragraph “c” of part 4 of article 162 of the Criminal Code of the Russian Federation, paragraph “h” of part 2 of article 105 of the Criminal Code of the Russian Federation and part 1 of article 158 of the Criminal Code of the Russian Federation. The Judicial Collegium for Criminal Cases of the Supreme Court, having considered the case on the appeal of the convicted person, changed the verdict regarding the punishment assigned to T., motivating its decision as follows.
By virtue of paragraph “i” of Part 1 of Article 61 of the Criminal Code of the Russian Federation, active assistance in the detection and investigation of a crime is recognized as a circumstance mitigating the punishment of the guilty person. When imposing the punishment, the court did not recognize the presence of the indicated mitigating circumstance on the part of the convicted person and referred to the fact that T. did not take any active actions aimed at assisting the investigation. By the time T. was detained, law enforcement agencies already knew about his involvement in the crime. From the defendant’s explanations at the court hearing, it is clear that he decided to confess to committing the crime after his arrest under the pressure of the evidence presented to him. However, the court’s conclusions that active actions aimed at assisting the investigation must be understood as actions that “uniquely and irrefutably” expose the guilty person to the crime are erroneous.
According to the law, active assistance in the detection and investigation of a crime should be taken into account as a circumstance mitigating punishment if a person provided the inquiry or investigative authorities with information about a crime committed with his participation that was previously unknown to them. The motives that prompted a person to actively contribute to the detection and investigation of crimes do not have legal significance. As can be seen from the case materials, there were no eyewitnesses to the commission of crimes against the victim. The circumstances that gave rise to suspect T. of involvement in the murder of the victim were the facts that he had sold a telephone and gold items that belonged to the victim. The preliminary investigation authorities did not have any other evidence at the time of T.’s arrest.
At the first interrogation, T. gave detailed testimony about what happened, and then confirmed them at the scene of the crimes. At the same time, he provided information that was not known to the investigative authorities, in particular, he indicated the place where he hid the victim’s backpack, and when examining video recordings from surveillance cameras located near the scene of the crimes, he explained that he and the victim were recorded in the video recordings. From the decision to bring the defendant as an accused and the indictment, it is clear that the criminal acts are described in them as T testified. Recognizing T.’s testimony as reliable, the court noted that they contain such details of the incident that could only be known to the person directly who committed the crime. Thus, the factual circumstances of the present criminal case indicate that T. not only admitted his guilt in committing the crime, but even before charges were brought against him, he actively cooperated with the preliminary investigation authorities. As a result, the criminal case was uncovered, investigated and considered by the court in the shortest possible time.
Based on the above, the judicial panel of the Supreme Court changed the verdict and recognized as a circumstance mitigating the punishment of T. under clause “c”, part 4 of article 162, clause “h”, part 2 of article 105 of the Criminal Code of the Russian Federation, his active contribution to the disclosure and investigation of crimes and commuted the punishment both for each crime and for a set of crimes (definition No. 39-APU15-4).
———— [1] Review of judicial practice of the Supreme Court of the Russian Federation No. 1 (2016).
Murder committed in violation of necessary measures for arrest
The arrest of the offender by the victim is considered a necessary defense and is equivalent to lawful actions when he has suffered harm equal to his resistance.
Suppression will not be considered lawful if:
- the offender did not resist;
- if his death occurred as a result of an escape attempt.
A person who has committed an attack with the intent of robbery or murder, with the aim of causing damage to health or material values, is subject to detention. If the detention process took place without these reasons, it will be considered illegal and will entail punishment for intentional deprivation of liberty.
Detention will also be considered illegal if its purpose is not to deliver the offender to the authorities, but to commit lynching over him.
