Attempted murder: elements of the crime, qualifications and responsibility

Have you ever thought about how, according to the Criminal Code of the Russian Federation, one could evaluate the behavior of the old man Spider from the well-known fairy tale “The Tsokotukha Fly”? He dragged the fly into a corner and wanted to destroy it. His actions have all the hallmarks of attempted murder. There is a separate article on this matter in the Criminal Code of the Russian Federation. True, in the fairy tale, the criminal’s arbitrariness did not lead to death. The hero, Komarik, saved the fly from the clutches of the villain.

In the book, everything ended in fun and celebration, but in reality everything is different. Attempted murder is prosecuted by law and carries severe punishment. Let's look at what is considered a crime and how long the offender can be sentenced for attempted murder.

What is considered an assassination attempt?

What is considered an attempted crime is stated in Article 30 of the Criminal Code of the Russian Federation.
These are the actions or inaction of a person, moreover, intentional and with the goal of committing a crime. These actions or inaction will be considered an attempt when the crime was not completed for reasons that do not depend on the person committing them. In other words, when a person began to perform an action prohibited by law, but did not complete it, something did not go as he planned or other people interfered with him (for example, police during an arrest). There could be any reason, but the main thing is that the circumstances were not in the control of the criminal. He wanted to, but it didn’t work out.

Subjective side

corpus delicti is the mental activity of the perpetrator, directly related to his commission of a crime, the content of which is revealed with the help of such legal features as
guilt
,
motive
and
purpose
, characterizing various forms of human mental activity[1].

A mandatory sign of the subjective side is guilt

. The criminal law does not define guilt. It was developed by criminal law science.

Guilt

– this is a certain form
mental attitude
to
the objective
signs of the crime being committed:

— act

(action or inaction);

— consequence

;

— causation

between them and represents a mental process occurring in consciousness.

The subjective side of murder is characterized only by intentional

a form of guilt, which directly and unambiguously follows from the legislative definition of murder.

Part 1 of Article 105 of the Criminal Code of the Russian Federation provides for liability for the so-called “simple” murder, which means intentional

causing the death of another person. Therefore, recklessly causing the death of another person is not murder. Therefore, the use of the phrases “careless murder” or “intentional murder” is incorrect, although it is sometimes found in legal literature and judicial practice[2].

Murder can be committed either directly

, and with
indirect
intent.

Straight

murderous intent differs from
indirect intent
both in intellectual and volitional content.

With direct

with intent, the person foresees
the inevitability
(inevitability, inevitability) of the onset of death and
desires
its occurrence; with
indirect intent
, the person foresees only
the possibility
(but
real
, and not abstract, as in the case of frivolity) of its occurrence and
does not desire it
, but
consciously allows
its occurrence or is
indifferent
(Article 25 of the Criminal Code).

Both in the science of criminal law and in judicial practice, it is generally accepted that if murder can be committed with both direct and indirect intent, then attempted

murder is possible only with
direct
intent[3].

While agreeing in principle with this position, it is necessary, however, to note that this qualification is correct in relation to an attempted murder, which is not completed according to objective reasons

reasons (shot, but missed; strangers interfered, provided medical assistance on time, etc.).

However, this position is not indisputable in the case when the crime is not completed due to subjective

reasons (due to a mistake in the identity of the victim). For example, a perpetrator, out of revenge (jealousy), fires a shot at a woman he knows is pregnant, being indifferent to such a consequence as death, but allowing for such a possibility. There is indirect intent in relation to the consequence (death). If, as a result of the injury, the victim subsequently dies, then the actions of the perpetrator should be qualified under clause “d”, part 2, article 105 of the Criminal Code of the Russian Federation as murder with indirect intent of a pregnant woman.

However, the question arises: how to qualify the actions of the culprit if instead of a pregnant woman it turns out to be her twin sister? I think it would be wrong to talk about simple murder in such a situation. The intent of the perpetrator (not to be confused with the goal!) was nevertheless aimed at taking the life of a pregnant woman. There will be no completed, qualified murder here, because... one of the objective signs of the crime provided for in paragraph “g” of Part 2 of Article 105 of the Criminal Code is missing – the death of a pregnant woman.

However, if we adhere to the position of judicial practice and the explanations of the Plenum of the Armed Forces of the Russian Federation, then the actions of the perpetrator in the given example cannot be classified as an attempted murder of a pregnant woman, since the intent to take life was indirect.

Another example. During another quarrel, the wife angrily tells her husband that she is pregnant by another man. Having learned about this, the husband brutally beats her out of jealousy, not wanting to take her life, but indifferent to such a consequence as death. There is indirect intent. The wife subsequently dies from the injuries caused. It turned out that she was not pregnant. If we take the position of judicial practice that in all cases an attempted murder can only be with direct intent, then the husband’s actions should be qualified according to the consequences that actually occurred, i.e. under Part 1 of Article 105 of the Criminal Code. But what about the intent (not the goal, not the desire!) to kill a pregnant woman? After all, it was pregnancy that became the reason for the brutal beating of the victim and causing her death with indirect intent.

It seems that attempted
murder
with indirect intent
is still possible
, but only in cases where the perpetrator
is mistaken about
the identity of the victim, the signs of which are provided as an aggravating circumstance of murder
.
To optional features

The subjective side includes
motive, goal
and
emotions
.

Motive

[4] is an internal conscious urge, conditioned by certain needs, [5] that guides the perpetrator when committing murder.

Target[6]

is an ideal mental model of the future desired end result[7], which the perpetrator strives to achieve when committing murder[8].

Some motives and goals listed in Part 2 of Article 105 of the Criminal Code of the Russian Federation classify murder as a qualified type. Read more about them below.

Emotion

– this is a mental experience, a feeling [9]. Most scientists attribute the emotional state of the perpetrator to a characteristic (sign) of the subjective side of the crime[10]. Others see in it a circumstance characterizing the subject of the crime[11].

Such an emotional state as affect

(state of strong excitement, loss of self-control [12]) classifies murder as a privileged crime against life (Article 107 of the Criminal Code).

It is necessary to distinguish the goal

from
intent
, and
emotion
from
motive
.

Target

murder may appear long before the intent to kill arises.

Intent

as a form of guilt arises in the guilty person only from the moment
begins
(at the preparation stage [13]) and can be concretized in the process of realizing the purpose of the murder.

Unity of purpose

is not identical to unity
of intent
. Having a single goal does not mean having a single intent. For example, one of the heirs set himself the goal of taking possession of the inheritance by killing other heirs who live in different cities (countries) distant from each other. For this purpose, the culprit arrives in one city (country) and commits the murder of the first heir. After some time, he commits a second and then a third murder. There is one goal, but three intentions. Each intent arises from the beginning of specific preparatory actions for committing a subsequent independent murder. This must be taken into account when distinguishing a qualified murder of two or more persons from a simple repeated murder (qualified by aggregate).

[1] See: Rarog A.I. Subjective side and qualification of crimes. M., 2001. – P.10.

[2] See: Rarog A.I. Problems of the subjective side of crime. M., 1991. – P.94; Commentary on the Criminal Code of the Russian Federation /Ed. V.I. Radchenko. M., 1996. – P.163; Judicial practice to the Criminal Code of the Russian Federation / Comp. S.V. Borodin, A.I. Trusova; Under general ed. V.M. Lebedeva - M.: Spark, 2001. - P.436, 467.

[3] See: paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)”; Rarog A.I. Decree. slave. – P.110.

[4] Motive is a motivating reason, a reason for some action. (See: Ozhegov S.I., Shvedova N.Yu. Indicative work. – P.376).

[5] See: Rarog A.I. Subjective side and qualification of crimes. M., 2001. – P.10.

[6] Not to be confused with a dream - something created by the imagination, mentally imagined. A dream is a more abstract, generalized concept than a goal. A dream can grow into a goal.

[7] See: Rarog A.I. Right there.

[8] A goal is an object of aspiration, what is necessary, it is desirable to implement (See: Ozhegov S.I., Shvedova N.Yu. Indicative work. - P.905).

[9] See: Ozhegov S.I., Shvedova N.Yu. Decree. slave. – P.944.

[10] See: Borodin S.V. Crimes against life. M.: Lawyer, 2000. – P.61.

[11] See: Rarog A.I. Decree. slave. – P.9; Sharapov R.D. Decree. slave. – P.226.

[12] See: Ozhegov S.I., Shvedova N.Yu. Decree. slave. – P.30.

[13] Due to the fact that intent, being a form of guilt that characterizes such an element of the crime as the subjective side, is possible only in a crime, only in connection with the act, and cannot be in addition to the act, the name of the stage is “detection of intent” is conditional. In this case, we are talking, rather, about the “target detection” stage.

What is murder

The answer is obvious - it is deprivation of life. When, through action or inaction, one person intentionally causes the death of another. Responsibility for murder is established by Article 105 of the Criminal Code of the Russian Federation.

Murder and intentional harm to human health resulting in death are different concepts. They exist in legal practice separately from each other. Intentional harm is punishable under Article 111 of the Criminal Code of the Russian Federation. Let's consider the difference between causing harm resulting in death and murder:

Murder	Damage to health resulting in death
The culprit wanted to take a person's life	The death was the result of negligence, not intentional intent.

To determine what goal the offender was pursuing, all circumstances are assessed, especially the method of action, the damage caused and the weapons used.

How is the sentence term calculated?

The procedure for bringing a person to justice for committing actions characterized as attempted murder is clearly regulated by the relevant Resolution of the Armed Forces of the Russian Federation. This regulatory act determines that the punishment for the perpetrator is applied in accordance with the standards established by Article 105 of the Criminal Code of the Russian Federation, but the chosen measure must be no more than ¾ of the maximum punishment established in the article.

For example, for committing an attempt to kill a person that does not fall within the qualifications (without aggravating circumstances), Article 105 establishes a maximum term of imprisonment of up to 15 years. Accordingly, in the case of attempted murder, a person can be sentenced to a term of just over 11 years.

More severe penalties are established for so-called qualified crimes, that is, murders that were committed with aggravating circumstances. In particular, such murders include:

Murder of two or more people.
The murder of a person carrying out official activities, or members of his family, because of his activities, fulfilling his duty to the public.
The death of a young child or other person who, known to the guilty person, was in a helpless state at the time of the commission of the act.
The murder of a pregnant woman, which the perpetrator knew about.
The murder of a person committed with extreme cruelty.
Death committed in a manner that poses a public danger.
Actions and murders committed based on blood feud.
A crime that was committed by a group of persons, including those situations where such citizens acted by prior conspiracy.
Actions committed for hire or for selfish purposes.
Acts committed to conceal other crimes or facilitate their commission.
Murder motivated by racial, political or national hatred.
Crimes committed for the purpose of further use of the victim’s organs or tissues.

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Article 105 of the Criminal Code of the Russian Federation provides for liability for such illegal acts in the form of imprisonment for up to 20 years or life imprisonment. However, since a person cannot be sentenced for life for attempted murder, when calculating the sentence, the judge takes into account exactly the 20-year time period. Therefore, the maximum sentence for qualified attempt is 15 years.

According to the general rule established in Art. 66 of the Criminal Code of the Russian Federation, the term assigned for an unfinished crime (attempt) cannot be more than 3/4 of the maximum amount of the most severe punishment for a crime of this type.

If we are talking about murder, then the most severe punishment for it is the death penalty. But, firstly, in the Russian Federation there is a moratorium on this type of punishment, and secondly, in paragraph 4 of Art. 66 of the Criminal Code of the Russian Federation there is a direct indication that the death penalty for attempted crime cannot be imposed.

The same applies to this type of punishment, such as life imprisonment: it is not assigned for attempted murder. Thus, the maximum penalty for attempted murder can be no more than 15 years in prison. This punishment is applied for committing murder under Part 2 of Art. 105 of the Criminal Code of the Russian Federation, i.e. in the presence of aggravating circumstances, such as:

two or more victims;
a victim who is in an obviously helpless state;
there was a kidnapping with intent to murder;
the victim is a pregnant woman;
the crime was committed with particular cruelty (torture was used, the victim was mocked, etc.);
victim - a person (or his relatives) performing official duties or public duty;
an attempt to commit a crime in a generally dangerous manner (for example, through an explosion, arson, shooting in a public place, etc.);
the motive for the murder is blood feud;
the attempted crime was made by a group of persons (with or without prior conspiracy);
the attempted crime was made for selfish or hooligan motives;
the attempted crime was accompanied by extortion or robbery;
the criminal acted on the instructions of the customer (hiring a killer);
the purpose of the crime is to conceal another crime or mitigate its consequences;
there was sexual violence;
the motive of the crime is enmity and hatred towards one or another social group;
the purpose of murder is to use the tissues and organs of the victim.

In the event of an attempt, maximum liability is established in accordance with Part 1 of Art. 105 of the Criminal Code of the Russian Federation and cannot be more than 11 years and 3 months.

Note! If the attempted murder was committed by a minor, then the responsibility for him will be less. The maximum penalty in this case is four and a half years for those under 16 years of age and seven and a half years for those over 16 years of age. In this case, the offender will not be sent to prison, but to a juvenile colony.

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If a mother attempted to kill her newborn child, the sentence is set based on the provisions of Art. 106 of the Criminal Code of the Russian Federation and cannot exceed 3 years and 9 months.

It is worth considering separately murders that were committed in a state of passion. According to the provisions of Art. 107 of the Criminal Code of the Russian Federation, the maximum term for such a crime is three or five years (if there were 2 or more victims). This means that for an attempt to commit such a crime, the maximum punishment is 2 years 3 months and 3 years 9 months, respectively.

The statute of limitations for attempted murder is not reduced. It is equal to the statute of limitations established for murder, i.e. 15 years old.

Liability for attempted murder

According to all canons, human life is inviolable. Even if the offense was not completed and the victim remained alive, the perpetrator will be tried for murder. After all, if circumstances had not arisen over which the offender was unable to influence, he would have carried his idea of murder to completion, and then the attempted premeditated murder would have become murder.

How they punish murder in Russia:

How to punish	In which cases
Imprisoned for 6 to 15 years. With or without restriction of freedom for up to 2 years (Part 1 of Article 105 of the Criminal Code of the Russian Federation)	In the case of murder, that is, the intentional killing of another person
imprisonment from 8 to 20 years (with restriction of freedom from one to two years); imprisoned for life	On Kill: pregnant woman; a young child; especially cruel; two or more people; for the purpose of taking human organs; a group of criminals; for hire (for remuneration); with rape, etc.

How much do they get for attempted murder? According to legal rules, the punishment for an attempted crime is no more than ¾ of the longest sentence or most severe type of prosecution for the completed crime.

Attention! Life imprisonment is not imposed for an attempted crime.

Taking into account these rules, for an attempt on a person’s life under Art. 105 of the Criminal Code of the Russian Federation gives up to 11 years 3 months under Part 1, and up to 15 years in prison under Part 2.

Important! The murder of one person and the attempted murder of another are considered separately, and not as the murder of two people.

Signs

The offender's actions may be classified as attempted murder under the following conditions:

For murder, the criminal prepared for the act and carried out certain actions to fulfill the plan.
The offender did not fulfill the objective side of the intent, that is, he did not complete the goal.
The offender failed to commit the offense due to circumstances beyond his control.

On the objective side, the encroachment usually consists of the criminal performing actions that partly form the objective side of the offense. When an offense is committed, the criminal fulfills the signs of the objective side of the act in part or in full, but the result of the act that the criminal was aiming at is not achieved due to factors beyond the control of the person.

From the subjective side, the assault occurs with direct intent, as evidenced by the article “Attempted Murder” of the Criminal Code of the Russian Federation.

The Criminal Code of the Russian Federation treats assassination as both actions and lack of actions. For example, stabbing with a knife during attempted murder (actions) or a mother’s refusal to breastfeed her child with the intention of causing the child to die (inaction), if the child did not die only because outsiders intervened in the process in time.

The issue of attempted murder with indirect intent deserves discussion in certain situations, for example, if the attempted rape is committed by a person infected with AIDS.

If a criminal act is not carried out completely by the subject of the crime because of his own urges (for example, he felt sorry for the victim), what was committed is defined as a voluntary refusal (Article 31 of the Criminal Code).

Determining the direction of intent and constructing the elements of an offense make it possible to separate the encroachment from the completed act. For example, causing serious damage to health with the intent to cause death should be classified as attempted murder, and not at all as causing damage to health of a certain severity.

Example. A major from a wealthy family killed his relatives with an ax and attempted to kill his sister. She survived, despite the fact that the jugular vein was punctured. Although the consequences were reflected in the infliction of serious damage to health, the intent was expressed precisely in murder.

Nuances of responsibility

The courts determine in each case:

the motives for the actions or inaction of the accused;
intentions (goals) of causing death;
method of murder;
location and nature of wounds;
other circumstances important to the case.

When a verdict is reached in an attempted murder case, special attention is paid to the reasons why the crime was not completed. After all, it’s one thing when a criminal stops on his own, and quite another if he’s stopped.

Cases from judicial practice

Example 1. One of the courts of the Republic of Sakha sentenced citizen Sh. to imprisonment in a maximum security colony for:

10 years under Part 3 of Art. 30, paragraph “a”, part 2, art. 105 of the Criminal Code of the Russian Federation;
18 years old under clause “a”, part 2, art. 105 of the Criminal Code of the Russian Federation.

The total punishment (partial addition) was 19 years.

A little about the details of the case. The court found that the drunken Sh., out of personal hostility towards I. and Kh., had the intention to kill them. In relation to citizen I., the plan was completed with blows of a kitchen knife to the torso and neck area. The criminal was unable to complete the murder of citizen X. due to reasons beyond his control. After the wounds and blows inflicted on him, Kh. locked himself away from Sh. in another room. Then neighbors got into the apartment and called doctors. Kh. was taken to the hospital. He survived.

Example 2. The Birobidzhan district court sentenced citizen K. for attempted murder to 4 years in prison in a general regime colony under Part 3 of Art. 30 and part 1 art. 105 of the Criminal Code of the Russian Federation.

Some details of the case. The court found that K. was guilty of attempted murder (specially causing death) of citizen E. The intentions were not completed due to the fact that the victim was quickly provided with medical assistance. K. could not influence this. The intent in the trial was confirmed by the circumstances of the incident, the high destructive power of the knife (the crime weapon), the force of the blow and the location of the wound. There was no doubt.

Qualification art. 30 of the Criminal Code of the Russian Federation

This provision provides sanctions for attempted crime. These are deliberate actions or inaction aimed at causing a person to die. But if the crime could not be completed for reasons beyond the control of the attacker - the police detained him - the criminal will still be punished. If he did not take a person’s life for personal reasons - he changed his mind, regretted it, got scared - there will be no criminal liability.

In order for an offense to qualify as attempted murder, the reasons that forced the attacker to stop should not depend on him.

In paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” dated January 27, 1999 No. 1, it is stated that the crime of murder can be committed with direct or indirect intent, and attempted has an exclusively direct motive. The subjective side of attempted murder has the following distinctive features:

the perpetrator was fully aware that his actions or inactions pose a danger to society;
he foresaw the negative consequences of his action and could have avoided the death of another person, but did not do so;
the attacker wanted death to occur, but this did not happen due to circumstances beyond his control.

If at least one of the signs described above is absent, direct intent is considered unproven. It is impossible to qualify a crime under the totality of Art. 105 and art. 30 of the Criminal Code of the Russian Federation. Instead, the court may revoke another article for the perpetrator - for example, Art. 109 of the Criminal Code of the Russian Federation “Causing death by negligence.”

The subject of a crime under the considered articles of the Criminal Code of the Russian Federation can be a sane offender who has reached 14 years of age. If, due to mental illness, a person did not realize the socially dangerous nature of his actions, criminal sanctions are not used.

The objective side of the crime is incomplete: there is a fact of the act, but there are no socially dangerous consequences in the form of the death of a person, a causal relationship is present.

When liability under Art. 105 of the Criminal Code of the Russian Federation does not apply

They will not be convicted of attempted premeditated murder unless the suspect's guilt is proven in court. There are also situations in which the court can reclassify the actions or inaction of the violator under other articles.

For example, a threat of death or serious harm to health (Articles 111 and 119 of the Criminal Code of the Russian Federation). When making a decision, all circumstances relevant to the correct classification of the crime will be considered.

Problems of distinguishing crimes from other offenses

When studying the Criminal Code of the Russian Federation, it is possible to identify several crimes with a similar composition, which explains the difficulty of qualifying such illegal acts.

Threat to commit murder. In practice, quite often there are situations when a person, shouting “I’ll kill,” points a knife at another citizen. Such actions are most often committed in the heat of a quarrel, but this does not prevent the problems of distinguishing such a crime from attempted murder. The qualification of the committed criminal act is determined by carefully studying all the circumstances of the case, the details of the incident and reliable information about the direction of the actions committed and the presence of intent. Since there is a huge difference between the penalties for such illegal actions, it is important to qualify them correctly.
Serious bodily harm. As practice shows, crimes in which grievous bodily harm was caused to the victim are considered the most difficult when assessing the circumstances of the incident. When qualifying an unlawful act, it is necessary to take into account the fact whether the criminal had the intent to kill a person or whether there was a desire only to inflict serious injuries on him so that he would have to restore his health for a long time.
The ability to complete actions. When delimiting crimes, the ability of the guilty person to complete his actions is also taken into account. For example, if a person strangled another citizen and was stopped by a third person, such actions may be regarded as an attempt. And if no one prevented the criminal from bringing the matter to death, but he stopped on his own, he will be held liable for causing grievous bodily harm.

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In criminal law, there is a problem related to the delimitation of attempted murder from other crimes. Thus, it is not always easy to determine whether the perpetrator made an attempt on the life of his victim or simply threatened to kill. Punishment for such a criminal offense as threat of murder is provided for in Art. 119 of the Criminal Code of the Russian Federation, and it is much less than the punishment for attempted murder - two years versus eleven years and three months.

Difficulties arise due to the fact that death threats are often accompanied by specific actions, such as beating, strangulation, etc. In order to distinguish between these two elements of a crime, one should take into account the smallest details that indicate the presence or absence of intent to commit murder on the part of the perpetrator of the crime. But the prosecutor will try to prove the fact that intent was present, which means the punishment should be more severe.

A similar problem arises when distinguishing attempted murder from causing grievous bodily harm. The last crime is qualified under Art. 111 of the Criminal Code of the Russian Federation, it carries a lighter penalty - imprisonment for up to 8 years. In such cases, the cornerstone is the presence or absence of intent to kill the victim.

The correct qualification of the actions of the accused in the event of harm to the health of the victim is key in the analysis of cases in which Art. 30 of the Criminal Code of the Russian Federation on attempted murder. And this is precisely where the court often has difficulties. In the absence of a good defense, there is a high chance that the judges will side with the prosecutor and impose a maximum sentence.

Therefore, if you or someone close to you has received the status of an accused of attempted murder, do not hesitate, but contact our experienced lawyers. During the trial in your case, they will present all the necessary evidence that will help the court classify the crime correctly and in accordance with the necessary articles of the Criminal Code of the Russian Federation.