Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 28, 2017 N 64-APU17-2

New edition of Art. 117 of the Criminal Code of the Russian Federation

1. Infliction of physical or mental suffering through systematic beatings or other violent actions, if this did not entail the consequences specified in Articles 111 and 112 of this Code, -

shall be punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same term.

2. The same act committed:

a) in relation to two or more persons;

b) in relation to a person or his relatives in connection with the performance of official activities by this person or the performance of public duty;

c) in relation to a woman who is known to the perpetrator to be pregnant;

d) in relation to a person who is known to be a minor or a person who is known to be in a helpless state or in financial or other dependence on the offender, as well as a person who has been kidnapped or taken as a hostage;

e) using torture;

f) by a group of persons, a group of persons by prior conspiracy or an organized group;

g) for hire;

h) for reasons of political, ideological, racial, national or religious hatred or enmity, or for reasons of hatred or enmity towards any social group, -

shall be punished by imprisonment for a term of three to seven years.

Note. In this article and other articles of this Code, torture is understood as the infliction of physical or mental suffering for the purpose of forcing a person to testify or take other actions contrary to the will of a person, as well as for the purpose of punishment or other purposes.

Defense against charges under Art. 117 of the Criminal Code of the Russian Federation

At the same time, the methods of committing torture against the victim are not limited to the above actions. They may also include the following:

1. Section
2. Pinching
3. Causing multiple small injuries with blunt or sharp objects
4. Blocking your breathing
5. Use of electric current
6. Violent acts of an offensive nature

It should be noted that in addition to the above methods, torture usually involves any other actions associated with repeated or prolonged infliction of pain.

Among other things, Art. 117 of the Criminal Code of the Russian Federation establishes a list of qualifying characteristics that directly affect the amount of punishment. These include:

1. Torture of two or more persons
2. Torture against a person or his relatives in connection with the performance of official activities by this person or the performance of public duty
3. Torture of a pregnant woman
4. Torture against a minor or a person who is in a helpless state or in financial or other dependence on the perpetrator (in this case, the dependence of young children on their parents, elderly parents on adult children, a debtor on a creditor, a subordinate on a boss, and so on is assumed).
5. Torture of a person kidnapped or taken hostage
6. Torture using torture. In accordance with the criminal legislation of the Russian Federation, torture is understood as the infliction of physical or moral suffering in order to force a person to testify or take other actions contrary to the will of a person.
7. Torture by a group of persons by prior conspiracy or by an organized group
8. Torture for hire
9. Torture based on political, ideological, racial, national or religious hatred
10. Torture motivated by hatred or hostility towards any social group

It is important to note that the courts, in the process of considering criminal cases under Art. 117 of the Criminal Code of the Russian Federation pay special attention to establishing the fact of “systematic” beatings during torture. It is this factor that distinguishes this act from other crimes, such as beatings and intentional infliction of minor harm to health.

Among other things, the following does not go unnoticed: whether the action was committed intentionally. That is, whether the person at the time of committing this crime was aware of the illegality of his actions. However, practice shows that the vast majority of such crimes are committed exclusively with direct intent.

The simple corpus delicti under Art. 117 of the Criminal Code of the Russian Federation is punishable by imprisonment for up to 3 years.

Moreover, if the crime contains any of the previously specified qualifying features, the punishment is established in the form of imprisonment for a term of up to 7 years. That is, it is obvious that the punishment is quite severe.

At the same time, we should not forget that the preliminary investigation authorities and courts often make mistakes when qualifying the actions of the accused. As a rule, this is due to the fact that the classification of such a crime as torture is often ambiguous.

Therefore, if you are charged under Art. 117 of the Criminal Code of the Russian Federation - you should immediately seek professional help from an experienced lawyer in complex criminal cases. Only a qualified specialist will provide proper legal support and defend your legal rights at a high level in court.

when charged under Art. 117 of the Criminal Code of the Russian Federation:

• acquittal on charges of causing physical suffering by assault
• acquittal on charges of inflicting mental suffering by assault
• release from custody in the courtroom when charged with causing physical suffering by assault
• release from custody in the courtroom when charged with inflicting mental suffering by assault
• reclassification of a crime when charged with torture against two or more persons into a crime of a lesser degree of gravity
• reclassification of a crime when accused of torturing a pregnant woman into a crime of a lesser degree of gravity
• reclassification of a crime when charged with torture of a minor into a crime of lesser severity
• reclassification of the crime when charged with torture with the use of torture into a crime of a lesser severity
• reclassification of a crime when charged with torture by a group of persons by prior conspiracy into a crime of a lesser degree of gravity

according to Art. 117 of the Criminal Code of the Russian Federation includes:

• legal advice from an experienced lawyer in complex criminal cases
• review of judicial practice in this category of criminal cases
• clarification of the norms of criminal and criminal procedural legislation (if necessary)
• assessment of judicial prospects of a criminal case
• expert opinions on your situation
• careful study of the materials of the criminal case for their compliance with the norms of criminal and criminal procedural legislation
• examination of evidence for its admissibility and legality
• preparing the client for the trial in legal and psychological terms
• collection of all necessary documentation
• preparation, drafting and submission of applications and petitions
• representing the client’s interests throughout the entire trial until the court of first instance makes a final decision on the case

• Call us or leave a request
• The lawyer will invite you to a consultation where he will study the situation and offer options for solving your problems.
• You have the opportunity to enter into an agreement with an experienced lawyer who has studied your problem
• The lawyer will prepare the necessary documents, find the evidence necessary to win in court
• A lawyer will provide effective protection, represent your interests, and achieve solutions to problems

Source: https://www.advokatmoskva.info/ugolovnye-dela/uslugi-advokata-pri-obvinenii-v-prestupleniyakh-protiv-zhizni-i-zdorovya/zashchita-pri-obvinenii-po-st-117-uk

Problematic issues of delimitation of Art. 117 of the Criminal Code of the Russian Federation from Articles 156 and 112 of the Criminal Code of the Russian Federation

This article is devoted to the distinction between torture and related offenses, namely: from intentional infliction of harm to health of moderate severity, from failure to fulfill the duties of raising a minor. Problematic for law enforcement are the issues of distinguishing between these elements when classifying criminal acts. In conclusion, this article draws a conclusion about the correct qualification of torture.

The entire qualification process consists of the consistent delimitation of each sign of the committed act from the signs of other, related crimes.

We can say that the differentiation of crimes is the other side of qualification [1, p. 126].

Let us consider the problems that arise when distinguishing torture from the intentional infliction of moderate harm to health and from failure to fulfill responsibilities for raising a minor.

Correlation and delimitation of Art. 117 from Art. 156 of the Criminal Code of the Russian Federation

In order to differentiate and correlate these articles, it is necessary to find out what is meant by the definition of “torture”.

From Article 117 of the Criminal Code of the Russian Federation it follows that torture is the infliction of physical or mental suffering through systematic beatings or other violent actions, if this does not entail the consequences specified in Articles 111 and 112 of this Code.

Article 156 of the Criminal Code of the Russian Federation provides for liability for failure to fulfill the duties of raising a minor if this is associated with cruel treatment.

The legislator does not provide an official interpretation of the term “cruel treatment” [2, p. 112].

The International Committee of the Red Cross defines ill-treatment as follows: torture and other methods of degrading treatment prohibited by humanitarian law, namely inhumane, cruel, humiliating and humiliating treatment, insult to human dignity, and physical or mental harm.

Many scientists believe that this concept covers only mental and physical effects on a child (on a person under the age of eighteen), however, this is not so.

Then many factors remain outside: inaction; economic exploitation; failure to provide permanent residence; feeding a child alcohol; involvement in the commission of a crime and other illegal public acts.

The concepts of cruelty and torture are not identical [3, p. 134]. From our point of view, cruelty includes torture, but not all cruelty is torture. The concept of cruelty is broader in scope, and torture is only one type of manifestation of cruelty.

According to the design of the composition, Articles 117 and 156 of the Criminal Code of the Russian Federation refer to formal compositions, and are considered completed from the moment the action or inaction is performed, regardless of the occurrence of consequences. The subjective side of both crimes is direct intent.

We believe that in order to qualify an act as torture, it must either last a certain period of time (in the case of “other violent acts”), or be systematic in nature (in the case of beatings) and have as its goal the infliction of physical or mental suffering. The object of Art.

117 of the Criminal Code of the Russian Federation is the physical and mental safety of the individual, and Article 156 of the Criminal Code of the Russian Federation is the normal development of a minor.

If we talk about the subject of the crime, then in Article 117 of the Criminal Code of the Russian Federation there is a general subject, whereas in Art. 156 of the Russian Federation is a special subject. Cruel treatment of a minor, provided for as a mandatory constructive element of Art. 156 of the Criminal Code of the Russian Federation, can also be expressed in the form of torture. In this regard, a legitimate question arises: is a combination of two articles required for qualification.

In most cases, judges apply in practice either Art. 117 of the Criminal Code of the Russian Federation, or Article 156 of the Criminal Code of the Russian Federation, unreasonably assuming that Article 156 of the Criminal Code of the Russian Federation already includes the elements of Article 117 of the Criminal Code of the Russian Federation. However, this is not true. Torture is a more serious act, therefore, when qualifying, it is worth using clause g. part 2 of article 117 of the Criminal Code of the Russian Federation and art.

156 of the Criminal Code of the Russian Federation, since these crimes have different objects and subjects of the crime.

As an example, let us give an example from judicial practice.

So, at about 3 o’clock in the morning in the apartment Zavictorin I.I., having entered his daughter’s room, on the basis of personal hostility, with the intent to cause physical pain, deliberately struck minor Z. with his hand in the back area, as well as with his fist in the head area, after then he grabbed her by the hair and pulled it forcefully, dropping the girl to the floor. From the listed actions Zavictorina I.I. juvenile Z.

experienced severe physical pain. In continuation of his actions aimed at causing physical and mental suffering and with the aim of humiliating his daughter’s dignity, Zavictorin I.I. brought a child's pot with urine from the next room and, using insulting language at his daughter, poured the contents of the pot on Z.'s head, causing her additional moral suffering.

At about 4 o'clock in the morning, in the room of his daughter, Zavictorin I.I., angry with her for her untimely return from the disco, on the basis of personal hostility, with the intent to cause physical pain, inflicted Z.

with the fists of both hands, two blows to the head area, ordered her to go to the kitchen, where, in continuation of his actions, he grabbed her by the hair on the back of her head, pulled her forcefully towards himself, after which he again struck her with the fists of both hands two blows to the head area and a blow with two palms to the head. ears, causing the girl, experiencing severe physical pain, to cry. By the listed actions Zavictorin I.I.

minor Z. suffered physical and mental suffering. At about 6 o'clock in the morning in the same place - Zavictorin I.I., angry with his daughter because she smelled of tobacco, based on personal hostility, with the intent to cause her physical pain, deliberately struck her with the fists of both hands two times in the head area, which is why the girl, having experienced severe physical pain, began to cry.

By these actions Zavictorina I.I. minor Z. suffered physical and mental suffering. The court, in our opinion, rightly qualified Zaviktyurin’s actions under Article 156 and paragraph “g” of Part 2 of Article 117 of the Criminal Code of the Russian Federation [4.]

Case No. 1-274/2018

SENTENCE

In the name of the Russian Federation

Kurchatovsky District Court of Chelyabinsk composed of:

having examined in open court in the courtroom a criminal case on charges

Styazhkin Sergei Vladimirovich, born DD.MM.YYYY in <data withdrawn>, citizen of the Russian Federation, <data withdrawn>, no previous convictions,

in the commission of crimes provided for in Article 117, part 2, paragraph “d”, Article 111, part 2, paragraph “b” of the Criminal Code of the Russian Federation,

installed:

Styazhkin S.V., 01/11/2018, during the period from 08:00. 20 minutes. until 21 o'clock 30 minutes, while in the apartment at <address>, in which he lived with DD.MM.YYYY together with FULL NAME4 and her young daughter Victim No. 1, <data taken> born, under the pretext of achieving educational goals, realizing his criminal intent, with the aim of causing physical and mental suffering through systematic beatings, Victim No. 1, <data taken> born, who, due to her young age, was in a helpless state, deliberately struck her at least one blow with his hand in the face, causing physical pain to the victim.

He, continuing his criminal actions, on January 16, 2018, in the period from 08:00. 30 min. until 21 o'clock 30 minutes, while in the apartment at the above address, taking advantage of the helpless state of the minor, Victim No. 1, <data taken> born, deliberately struck her at least once with his hands on the left shoulder, causing physical pain to the victim.

He, continuing his criminal actions, on January 19, 2018, in the period from 08:00. 30 min. until 21 o'clock 20 minutes, while in the apartment at the above address, acting deliberately, taking advantage of the helpless state of the minor, Victim No. 1, <data taken> born, struck her at least once in the face with his hands, causing physical pain to the victim.

He, continuing his criminal actions, on January 20, 2018, while in the apartment at the above address, taking advantage of the helpless state of the minor. Victim No. 1, <data taken> born, inflicted at least one blow on her buttocks with his hands. caused physical pain to the victim.

He, continuing his criminal actions, on January 23, 2018, while in the apartment at the above address, taking advantage of the helpless state of the minor, Victim No. 1, <data taken> born, struck her at least once with his hands in the left thigh area causing physical pain to the victim.

He, continuing his criminal actions, on January 24, 2018, while in the apartment at the above address, taking advantage of the helpless state of the minor, Victim No. 1, <data taken> born, inflicted at least one blow on her face with his hands, caused physical pain to the victim.

As a result of the criminal actions of Styazhkina S.V., Victim No. 1, <data taken> were caused, which are classified as injuries that did not cause harm to health, as well as physical pain and mental suffering.

In addition, Styazhkin S.V., 01/24/2018, in the period from 17:00. 30 min. until 19:20, while in the apartment at <address>, realizing his criminal intent, acting intentionally, he forcefully struck the minor Victim No. 1, <data taken> born, who was obviously in a helpless state, at least one punch to the area of ​​the right lower limb, causing Victim No. 1 <data taken>, qualified as serious harm to health.

At the court hearing, the defendant agreed with the charges, confirming the circumstances of the crimes, admitted full guilt, and supported the request to consider the case in a special manner.

The court found that this petition was submitted by the defendant voluntarily, after consultation with the defense lawyer, the consequences of passing a sentence without a trial are clear and understandable.

The state prosecutor and the victim's representative agree with the use of a special trial procedure and did not object to the defendant's request.

Taking into account the opinion of the parties, as well as the fact that the punishment for the crimes of which S.V. Styazhkin is accused does not exceed 10 years, the court came to the conclusion that all the conditions for passing a sentence without a trial were met and granted the defendant’s request. The court comes to the conclusion that the accusation, which the defendant agreed with, is justified and confirmed by the evidence collected in the case.

The actions of S.V. Styazhkin are correctly qualified under Article 117, Part 2, Clause “d” of the Criminal Code of the Russian Federation - torture, that is, infliction of physical or mental suffering through systematic beatings against a person who is known to be in a helpless state by the perpetrator, if this did not entail the consequences specified in Articles 111 and 112 of the Criminal Code of the Russian Federation; and also under Article 111, part 2, paragraph “b” of the Criminal Code of the Russian Federation - intentional infliction of grievous harm to health, causing a significant permanent loss of general ability to work by at least one third, in relation to a minor, who is known to be in a helpless state by the perpetrator.

When deciding on the punishment of the defendant, the court, in accordance with Articles 6, 43, 60, 62 Part 5 of the Criminal Code of the Russian Federation, takes into account the nature and degree of public danger of the crimes committed, the personality of the defendant, including mitigating circumstances, the impact of the imposed punishment for the correction of the convicted person and for the living conditions of his family.

Styazhkin S.V. have no previous convictions, admitted guilt and repented of the crimes committed, as indicated in the confession (vol. 2, case file 68), has a permanent place of residence and place of work, where he is positively characterized, took measures to compensate for the damage caused to the victim .

By virtue of the provisions of Article 61 of the Criminal Code of the Russian Federation, the court recognizes as mitigating circumstances the following circumstances: lack of criminal record, admission of guilt and repentance for the crime, surrender, availability of place of residence and work, positive characteristics, compensation for damage.

The totality of mitigating circumstances makes it possible not to assign S.V. Styazhkina a sentence. additional punishment in the form of restriction of freedom.

There are no aggravating circumstances for the defendant provided for in Article 63 of the Criminal Code of the Russian Federation, which allows, when assigning punishment, to take into account the provisions of Part 1 of Article 62 of the Criminal Code of the Russian Federation.

Based on the nature and degree of public danger of the crimes committed, the personality of the defendant, taking into account the provisions of Part 5 of Article 62 of the Criminal Code of the Russian Federation, the court considers that Styazhkinu S.V. it is necessary to impose a sentence of imprisonment for each crime, believing that this type of punishment will be fair and can ensure the achievement of the goals of punishment - the restoration of social justice, the correction of the convicted person and the prevention of his committing new crimes.

When imposing the final punishment, the court applies the principle of partial addition of sentences. The court finds no grounds for applying a different principle.

There are no exceptional circumstances, in the presence of which it is possible to impose a more lenient punishment than provided for in the sanctions of Article 117 Part 2 and Article 111 Part 2 of the Criminal Code of the Russian Federation of the Criminal Code of the Russian Federation. Thus, the court finds no grounds for applying the provisions of Article 64 of the Criminal Code of the Russian Federation and Article 73 of the Criminal Code of the Russian Federation to the defendant.

There are no grounds provided for in Part 6 of Article 15 of the Criminal Code of the Russian Federation for changing the category of both crimes to a less serious one. In resolving this issue, the court takes into account the method of committing crimes, the degree of implementation of criminal intentions, the role of the defendant in the crimes and his intent, the purpose of the act, the nature and extent of the consequences, as well as other factual circumstances of the crimes, including mitigating circumstances, which, taken together, did not reduce the degree of public danger of the crimes committed by S.V. Styazhkin.

Based on the above and guided by Article 316 of the Code of Criminal Procedure of the Russian Federation, the court,

sentenced:

recognize Sergei Vladimirovich Styazhkin guilty of committing crimes under Article 117, Part 2, paragraph “g” of the Criminal Code of the Russian Federation and Article 111, Part 2, paragraph “b” of the Criminal Code of the Russian Federation, and impose punishment:

under Article 117, Part 2, Clause “d” of the Criminal Code of the Russian Federation - in the form of imprisonment for a period of 3 (three) years,

under Article 111, Part 2, Clause “b” of the Criminal Code of the Russian Federation - in the form of imprisonment for a period of 4 (four) years.

In accordance with Article 69 Part 3 of the Criminal Code of the Russian Federation, by partial addition of sentences, finally assign Sergei Vladimirovich Styazhkin a sentence of imprisonment for a period of 5 (five) years to be served in a general regime correctional colony.

Preventive measure for Styazhkin S.V. leave unchanged - in the form of detention, calculating the term of serving the sentence from 06/06/2018 - the day the verdict was announced.

Credit to Styazhkin S.V. during the period of serving the sentence, the time of detention is from 01/26/2018 to 06/06/2018.

Material evidence: <data seized>, upon entry into force of the verdict, destroy.

The verdict can be appealed on appeal to the Judicial Collegium for Criminal Cases of the Chelyabinsk Regional Court within 10 days from the date of proclamation, and by a convicted person in custody, within the same period from the date of delivery of a copy of the verdict. In the event of filing an appeal or presentation, the convicted person has the right to petition for his participation in the consideration of the criminal case by the court of appeal.

Chairman /signature/ L.A. Maksimova