Privileged types of murders in 2022: what they are, criminal liability

Chapter 16 of the Criminal Code of the Russian Federation “Crimes against life and health” presents a wide list of various crimes that resulted in the death of the victim or loss of his ability to work.

Among them, privileged types of murders are allocated to a special group. These are crimes that, due to special mitigating circumstances, are socially recognized as less dangerous than ordinary types of murder.

The Code has only 3 articles devoted to the application of criminal liability against persons who have committed privileged murders. Let's look at each of them in detail.

What is privileged murder?

Preferential murder is a crime that poses little danger to society. Such insignificance is due to the circumstances of the crime, the status of the guilty person and the victim.

Each crime of privileged murder has its own special characteristics of structural elements.

The following may act as injured parties in privileged murders:

Newborn baby;
A torturer who regularly mocks the guilty person;
An attacker who is the victim of self-defense;
A criminal during whose arrest his unintentional murder was committed.

The basis for mitigating guilt in privileged murders is the physiological or psycho-emotional state of the subject of the crime.

In practice, the number of privileged murders is many times lower than the number of ordinary qualified.

In addition, investigative authorities are often faced with attempts to disguise an ordinary murder with a privileged composition of the crime. This is primarily due to the desire of attackers to avoid responsibility or minimize it.

The classification of privileged types of murders is as follows:

Art. 106 of the Criminal Code of the Russian Federation – murder by a mother of a newborn child;
Art. 107 of the Criminal Code of the Russian Federation - murder in a state of passion;
Art. 108 of the Criminal Code of the Russian Federation - murder in excess of the limits of necessary defense;
Art. 108 of the Criminal Code of the Russian Federation - murder in excess of the measures necessary to apprehend the criminal.

Privileged murders (murders with mitigating circumstances).

The current criminal law provides for 4 types of murder with mitigating circumstances. With our permission, he will not cover the last two compositions, since when studying the General Part we have already encountered the qualification of such acts.

Types of privileged murders

• Murder of a newborn child by a mother (Article 106 of the Criminal Code of the Russian Federation)

• Murder committed in a state of passion (Article 107 of the Criminal Code of the Russian Federation)

• Murder committed when exceeding the limits of necessary defense (Part 1 of Article 108 of the Criminal Code of the Russian Federation)

• Murder committed by exceeding the measures necessary to detain the person who committed the crime (Part 2 of Article 108 of the Criminal Code of the Russian Federation)

So, murder by a mother of a newborn child (Article 106 of the Criminal Code of the Russian Federation). On the one hand, what could be worse than a mother killing her child; moreover, we have a qualified offense - the murder of a minor (superaggravating circumstance). It turns out that such an act is committed by a woman who has no inhibitions at all, if she is capable of encroaching on the life of her child. On the other hand, traditionally, infanticide by the mother of a newborn child is considered as a mitigating circumstance. The question arises why. It turns out that women (not all, of course), a certain percentage of them, in the state of childbirth, immediately after childbirth, for a certain time after childbirth, are capable of committing acts that are difficult to explain from the position of a sane person. During this period, a woman undergoes some psychological processes that can be considered a weakening of volitional control over her behavior. Having talked with women who observed childbirth and were next to women in labor in the wards, we can conclude that there are different cases. Even in the period after childbirth, a woman begins to be capricious, hysterical, changes occur in the psyche (irritability and capriciousness do not appear in everyone, but they still occur). It is in this state (if certain life circumstances are superimposed on this state), some women decide to kill their own child. Due to the fact that such actions occur in the postpartum period, when certain changes in mental processes are observed, the legislator went to mitigate the responsibility, since these actions are caused by those processes that are often not controlled by the will of the woman. Hence the conclusion is drawn that it is necessary to mitigate responsibility. If we open the Criminal Code, we will see that the sanctions have been very significantly reduced.

Let's move directly to the characteristics of the composition itself. There are 3 varieties of this composition.

Types of murder by a mother of a newborn child (Article 106 of the Criminal Code of the Russian Federation):

1) Murder of a newborn child by a mother during or immediately after childbirth

2) Murder of a newborn child by a mother in a psychotraumatic situation

3) Murder by a mother of a newborn child in a state of mental disorder that does not preclude sanity

Everywhere there is a special victim - a newborn child. In this regard, the question arises, who is a newborn child? Since the very concept of a child is definitely not criminal law, but is defined in other disciplines, there is a dispute about this. The dominant point of view is that this is a child whose age has not reached 1 month. But the murder of a newborn child under 1 month, apparently, can only be committed according to the last two options. According to the first option, the murder of a newborn child by a mother during or immediately after childbirth is limited to a time frame (namely, childbirth and the short period after childbirth). The period “immediately after childbirth” implies a time period of one day.

This is a crime with a special subject. The subject is the mother of the newborn child. According to Article 20 of the Criminal Code of the Russian Federation, responsibility begins at the age of 16. Based on general logic, the mother of a child, if she has not reached the age of 16 and kills her newborn child, then she is not subject to criminal liability at all, including under Article 105 of the Criminal Code (another decision would be contrary to common sense and the principle of justice) . The special subject is the mother who gives birth to the child. As a rule, it is biological mothers who give birth, but we all know that we now have the opportunity to give birth to surrogate mothers. So, if it is not the biological mother who gives birth, but the surrogate mother, then the subject of the crime is the latter.

Only the mother of a newborn child can answer under Article 106; the rest of the persons who participate in this crime are liable under Article 105 of the Criminal Code, with the qualifying criterion of causing the death of a minor. Shchepelkov told us the position that is dominant in the doctrine. However, he should note that there is one decision of the Supreme Court of the Russian Federation, in which the mother of a newborn child provided complicit actions to another person who, with her consent, caused the death of the newborn child. Everyone’s actions were assessed under Article 105 of the Criminal Code. In Shchepelkov's opinion, this is not correct. If the mother is involved in taking the life of this child, and if there are all the signs of the crime in question, then it does not matter what role she plays in this. Shchepelkov believes that such a mother should in any case be held liable under Art. 106 of the Criminal Code. And this is the absolutely dominant point of view in the UP doctrine. Another person will always be liable under Article 105. According to the meaning of the law, mitigation is carried out purposefully in relation to a specific subject - the mother of a newborn child. If you come across a similar task, you will need to indicate that one point of view is dominant in the doctrine, but there is a debatable resolution of the RF Armed Forces that runs counter to this point of view. What difference does it make what role the mother plays in the commission of this crime? After all, we mitigate responsibility not depending on what role she performed, but depending on the fact that she has this mental state when she is not quite adequately aware of the consequences of the action being performed.

Now separately for each variety of this composition. Murder during or immediately after childbirth . The legislator apparently meant that the mother's responsibility for the murder of a newborn child should occur in the case when the intent to kill arises during this period. The birth of such a thought should be determined by the mentally abnormal state of the woman in labor. However, the way Art. 106, gives us reason to believe that even if in a case where the mother in cold blood decided to give birth and kill a child, it formally turns out that this is the mother’s murder of a newborn child (regardless of whether the occurrence of intent is due to this mental state of the mother in labor or not). From Shchepelkov’s point of view, this is not correct, because a woman who calmly, in a completely sane mind, goes to take the life of her child cannot be in that psycho-traumatic state. An example from the practice of Holland. The wife and husband lived together. The husband worked as a sailor, stayed at home for some time, and then went sailing. While he is at home, the wife becomes pregnant, while the husband goes sailing, she gives birth to a child, kills him, and buries him. A few years later, 6 or seven buried corpses are discovered behind the house. That is, the mother systematically carried out these murders. If this had happened here, the woman would have committed acts that formally fall under Article 106 of the Criminal Code. This is the murder of a newborn child by a mother (6 times!), which is somewhat out of logical order.

The murder of a newborn child by a mother in a psychotraumatic situation. The situation associated with childbirth is always stressful for a woman. In addition, this psychotraumatic situation may be caused by certain life circumstances (for example, on the eve of childbirth, the husband left the family, one of the relatives died - the woman feels especially worried about her fate). When one circumstance overlaps with another, the legislator considered it necessary to mitigate the murder. A psychotraumatic situation is an objective circumstance that negatively affects the psyche of a woman in labor.

The murder of a newborn child by a mother in a state of mental disorder that does not preclude sanity. This condition is clearly reflected in Article 22 of the Criminal Code of the Russian Federation, and if necessary, you can look at the notes on the General Part for a detailed presentation of this material.

And now the answers to the questions:

· If a person assists a mother in the murder of a newborn child, then he is charged with Part 2 of Article 105 of the Criminal Code with reference to the norm of the General Part. Most often, the husband persuades his wife to give birth and kill. The husband will be held liable as an instigator under Article 105, and the wife will be held liable under Article 106 of the Criminal Code.

· The murder of a newborn child by a mother is a crime with privileged elements (with mitigating circumstances). We need to establish why this privilege can be extended to all persons involved in the commission of a crime, or only to a specific person. Shchepelkov’s position (and the position of the majority of specialists in the UP) is that on this basis it is possible to mitigate liability only for a specific person (mother), regardless of what role she plays in the commission of a crime. Other persons who were not in such an inadequate state do not receive the right to mitigation of liability. For example, the objective side of rape assumes that only a man can commit such a crime. However, this composition is complex, since it includes not only sexual intercourse, but also violence. So, violence as part of the objective side implies that such actions can be carried out by someone other than a man. And fulfilling part of the objective side is co-perpetrator in a crime (that is, a woman can also implement the objective side of rape). Therefore, we say that if a crime is committed by one person, then only a man could have committed it. If the crime is committed by several persons, then a woman may also be a co-perpetrator.

· Example. The mother gives birth, she is discharged from the maternity hospital, and brought home. After a while she thought that she didn’t have a husband, the child was interfering with her studies, so she decided to kill the baby. Question: How to qualify? This act clearly does not fall under the disposition of Article 106 of the Criminal Code, since she was discharged not on the first day, but on the 5th or 6th. Murder according to the first option is impossible; all that remains is to check whether there was a psychotraumatic situation (there wasn’t, the woman made a very tough choice, quite consciously), whether there was a mental disorder (there wasn’t). Therefore, in this case, we impute to the woman, according to the general rule, paragraph “c”, part 2 of article 105 of the Criminal Code. Typically, such situations occur with women who give birth at home, not in a maternity hospital. However, according to statistics, according to Shchepelkov, the crime provided for in Article 106 of the Criminal Code is a fairly common occurrence: on average, there are about two such murders per 1 million inhabitants of the Russian Federation per year (at the moment the population is 143 million people, it turns out that on average 280 such crimes are committed per year).

Mother killing a newborn

Infanticide is one of the most controversial crimes . Not all legal experts agree that the murder of a newborn occurs due to a special altered mental state of the woman.

Many believe that such murders are pre-planned and therefore not privileged at all.

The privileged element of murder in this case is assessed in terms of three main issues:

Whether the status of the victim is a newborn;
Is the psycho-emotional state of the killer mother normal?
Whether the crime is directed at a living child or a fetus.

It is generally accepted that from the beginning of labor and the outpouring of water, the child is no longer recognized as a fetus, but is considered a living person.

This point is very important for qualifying the crime. After all, if the mother killed the child before the onset of labor, this action will be recognized as an abortion, and not as a privileged murder.

Therefore, in Art. 106 of the Criminal Code of the Russian Federation states that only the following can be recognized as privileged murder:

Murder during childbirth;
Murder immediately after childbirth;
Murder of a newborn in a state of mental disorder that does not preclude sanity.

According to medical data, a newborn is a child up to the age of 4 weeks.

However, in the legal context, a newborn is a child whose age after birth has not exceeded one day.

Composition of the crime and responsibility under Art. 106 of the Criminal Code of the Russian Federation

This type of privileged crime existed in pre-revolutionary times. During the Soviet years, however, the murder of a newborn was considered an ordinary form of murder.

The offense is as follows:

The object is the life of a newborn.
The objective side is an action or inaction that is aimed at causing the death of a child.
The subjective side can appear both in the form of direct intent and indirect intent.
A woman giving birth at the age of 16 years, including a surrogate mother, can be recognized as a subject.

If the murder is committed by a biological mother, her actions will be qualified under Art. 105 of the Criminal Code of the Russian Federation.

In our country, only women between 20 and 35 years old can act as a surrogate mother. Therefore, the concept of “mother” in the law is considered only in the context of a woman giving birth, and not a biological mother.

If the woman’s guilt is proven, she faces:

Restriction of freedom from 2 to 4 years;
Forced labor for up to 5 years;
Imprisonment for up to 5 years.

These are the maximum possible sentences . Mitigating circumstances in privileged homicides can also further reduce the degree of liability.

For example, if a woman has young children, is too young, or has a serious health condition, the judge may give her the minimum possible sentence.

Privileged types of murder

From ancient times to the present day, murder is considered the most serious and most severely punishable act. Such an assessment is determined by the significance of the target of the attack and the degree of public danger of the crime. Human life is the most important good given to him by nature, a fundamental social value; deprivation of life is irreversible and means the cessation of the existence of an individual, personality, member of society. That is why the right to life is under maximum protection based on the Constitution of the Republic of Kazakhstan.

The corpus delicti, in which, along with the main features, there are circumstances mitigating responsibility and punishment, is called a privileged composition. It can be contained either in different parts of the same article of the Special Part of the Criminal Code, or in a separate article [1, p. 62].

Preferred types of murder include: murder by a mother of a newborn child (Article 100 of the Criminal Code); murder committed in a state of passion (Article 101 of the Criminal Code); murder committed when the limits of necessary defense were exceeded (Article 102 of the Criminal Code); murder committed by exceeding the measures necessary to detain the person who committed the crime (Article 103 of the Criminal Code).

In the Criminal Code, the legislator considered it necessary to include in a separate article 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.

The social danger of this criminal act is expressed in the violation of a person’s absolute right to life, which belongs to him from birth. The peculiarity of this type of murder is that the law connects it with the presence of certain objective and subjective factors that can be recognized as mitigating circumstances.

The object of this crime is human life. The victim is a newborn, which in forensic medicine is recognized as a baby from the moment of the onset of physiological labor to one day, in obstetrics - up to one week, in pediatrics - up to one month.

The objective side of the act is expressed in the unlawful infliction of death by a mother on her newborn baby. Criminal acts can be committed either by active actions or by inaction. A mitigating circumstance is the murder of a child by the mother if it was committed in a relatively short period of time - during childbirth or immediately after it (within a few minutes), because at this time, the woman in labor may be in a traumatic situation or mental disorder.

In such cases, a psychotraumatic situation should be recognized as significant circumstances that negatively affect the mental state of the woman who gave birth (for example, the father’s abandonment of the child, condemnation by relatives of the birth of a child out of wedlock, refusal of the child’s father or the woman’s relatives to provide financial assistance for the existence of the mother and child, etc.) [2]. A woman’s mental disorder after the birth of a child is characterized, as a rule, by negative processes in her mental activity (depression, feelings of fear, manic moods, etc.). The presence of a mental disorder associated with childbirth in a woman does not exclude sanity. To establish the sanity or insanity of a woman in connection with these disorders, it is necessary to conduct a forensic psychological and psychiatric examination [3, pp. 22].

The crime under consideration will occur both in the killing of a newborn after separation of the fetus from the mother’s body, and in causing the death of an unborn fetus if the birth process has begun. For example, causing damage to the head of a child being born before the end of physiological labor.

When qualifying an act under Art. 100 of the Criminal Code, the newbornness of the child should be taken into account, which is determined in accordance with pediatric criteria by a forensic medical examination. The murder of a child after the expiration of the period of his newborn™ cannot be qualified under Art. 100 of the Criminal Code, liability in such cases occurs under 100 of the Criminal Code.

Taking the life of a child in the womb is not murder, but constitutes termination of pregnancy, and a woman who voluntarily terminates a pregnancy is not subject to criminal liability [4, p.255].

The crime is considered completed from the moment the death of the newborn occurs.

The subjective side of this murder is characterized by intentional guilt. Intent - direct or indirect.

The subject of this crime can be a woman - the mother of a newborn baby who has reached the age of 16. Other persons, if they are co-perpetrators of such a murder, are subject to liability under Article 100 of the Criminal Code, since the circumstances on the basis of which the mother’s responsibility is mitigated do not apply to them.

The murder of two or more newborn children (twins) by a mother also entails liability under 100 of the Criminal Code, since Art. 100 of the Criminal Code refers to the murder of one child, that is, the mitigating circumstances specified in this article apply only to cases of murder of one newborn child.

The crime provided for in Art. 100 of the Criminal Code PK, refers to a crime of medium gravity.

Murder committed in a state of passion (Article 101 of the Criminal Code) is treated the same as murder under Art. 100 Criminal Code PK, to privileged murder. The basis for mitigating the punishment for such a murder is connected, on the one hand, with the special mental state of the perpetrator, and on the other hand, with the fact that this state of the perpetrator is caused by the unlawful behavior of the victim himself.

The object of the crime is the life of the victim.

The objective side is a murder committed in a state of sudden strong emotional disturbance (affect) caused by violence, mockery or grave insult or other illegal or immoral actions (inactions) of the victim, as well as a long-term psychologically traumatic situation that arose in connection with systematic illegal or immoral behavior victim.

To qualify an act under Art. 101 of the Criminal Code, a necessary condition is the presence of physiological affect in the perpetrator, its suddenness and connection with the actions of the victim.

An affective state is a short-term, intense emotion that occupies a dominant position in the consciousness of the perpetrator while maintaining his ability to self-control and the ability to act in connection with the reason that caused the affect [5, p.55].

Severe emotional disturbance is not considered a painful mental disorder and is not considered a medical criterion for insanity. Therefore, it is sometimes called physiological affect in contrast to pathological affect, when, as a result of a strong experience, a complete blackout of consciousness occurs, which excludes sanity. Physiological affect does not deprive a person of the ability to be aware of his actions, but it significantly complicates self-control and critical assessment of decisions made.

Physiological affect is characterized by a high-level emotional outburst, which removes the human psyche from its normal state, weakens conscious intellectual activity, leads to excessive intensity of internal psychological processes and violent external manifestations, to rash actions. Externally, the state of affect manifests itself in different ways, depending on many conditions, including the individual characteristics of the human psyche. Therefore, to clarify the question of whether the perpetrator was in a state of passion and for how long, it is necessary to conduct a forensic psychological and psychiatric examination. In this case, it is necessary to pose a number of questions to experts: whether the perpetrator was in a state of passion at the time of committing the crime, its time limits, i.e. beginning and end [6, pp. 53, 58].

The article in question of the Criminal Code deals with physiological affect, from which pathological affect should be distinguished, which is considered as one of the types of temporary mental disorder and entails declaring a person insane (Article 16 of the Criminal Code).

It should be noted that Article 101 of the Criminal Code does not speak about a simple state of excitement of the subject, but about a state of strong emotional excitement.

To recognize physiological affect as a circumstance mitigating responsibility for murder, it is necessary that the affect arise suddenly as a reaction to the unlawful behavior of the victim. The suddenness of strong emotional disturbance should be understood as its occurrence unexpectedly for the guilty person. A state of affect may arise unexpectedly against the background of previously normal relations between the perpetrator and the victim, but may be the result of long-term hostility between them or a long-term psychologically traumatic situation due to the systematic illegal or immoral behavior of the victim [7, p. 89].

A person may experience a state of strong emotional disturbance as a result of various circumstances. But the criminal law recognizes the state of physiological affect as a circumstance that mitigates responsibility for murder only when it is caused by the unlawful behavior of the victim. In the disposition of Art. 101 of the Criminal Code defines a list of circumstances, of which at least one must be established for its application.

First of all, it is indicated that unlawful violence must be applied to the future killer by the victim (strikes, beatings, harm to health, threat to the life of not only the perpetrator, but also his family and friends). Murder in a state of strong emotional excitement caused by the lawful actions of the victim against the perpetrator cannot be qualified under Art. 101 CC. For example, when a police officer detaining a criminal is killed by someone present.

If a person, committing murder in a state of passion, exercises his right to the necessary defense, then he is either exempt from criminal liability on the basis of Art. 32 of the Criminal Code of the Russian Federation, or is responsible for murder committed when the limits of necessary defense were exceeded (Article 102 of the Criminal Code of the Russian Federation).

Bullying involves repeated violent actions of the victim, expressed in gross, cynical humiliation of the honor and dignity of the perpetrator or his loved ones, ridicule of ideals or shortcomings, disclosure of information about the intimate side of life, etc.

A grave insult is a subjective evaluative category based on the norms of morality (gross humiliation of honor and dignity, insult to national and religious feelings, desecration of love, etc.) [8, p. 125].

Other illegal or immoral actions (inaction) of the victim can be both violent and non-violent in nature. For example, a gross violation of any legal norms - labor, housing, administrative and others, or a violation of moral norms established in a given society.

A long-term psychotraumatic situation caused by the systematic illegal or immoral behavior of the victim can be expressed in the victim committing a number of acts that create unbearable living and working conditions for the perpetrator, as a result of which the “cup of patience” overflows, the person cannot restrain himself and commits murder.

To recognize the presence of this crime, it is important to establish that there is no gap in time between the murder and the provocative behavior of the victim. For example, if a husband caught his wife with her lover, then went to get a weapon and shot them, then it cannot be recognized that he has signs of the crime in question. In such cases, murder will take place not out of passion, but out of revenge.

Also, there will be no corpus delicti of this crime if the murder, committed in a state outwardly similar to a state of passion, was planned by the perpetrator in advance, and this intent was realized using an artificially created situation [9, p. 214].

Article 101 of the Criminal Code also applies in cases where unlawful violence, bullying, grave insult and other illegal behavior of the victim was directed not at the perpetrator, but at other persons. The main thing is to establish that such behavior of the victim can cause a state of strong emotional disturbance in the perpetrator. For example, if such behavior of the victim was towards relatives of the perpetrator.

Murder committed in a state of passion, even in the presence of the qualifying features specified in Part 2 of Art. 100 of the Criminal Code, must be qualified under Art. 101 CC.

The crime is considered completed from the moment of biological death.

The subjective side of the crime in question is characterized by guilt in the form of sudden direct or indirect intent. Most often, the motive for this murder is revenge or jealousy, but there may be other motives.

Subject is a sane individual who has reached the age of 16 at the time of the commission of the crime.

Part 2 Art. 101 of the Criminal Code provides for the qualified corpus delicti of this crime - the murder of two or more persons, committed in a state of passion. The perpetrator simultaneously or over a short period of time takes the lives of several people involved in causing him strong emotional disturbance.

A murder committed by an official in a state of passion during the performance of his official duties should be qualified only under Art. 101 UK PK. Additional qualifications are not required here, since the acts provided for in this article of the Criminal Code should not be committed in a state of passion.

Murder committed when the limits of necessary defense were exceeded (Article 102 of the Criminal Code) provides for criminal liability and is considered committed under mitigating circumstances. The object of the crime is the life of the offender.

The objective side is characterized by a murder committed when the limits of necessary defense were exceeded.

Deprivation of the life of an attacker while protecting the person, the rights of the defender or other persons, the legally protected interests of society or the state from a socially dangerous attack, i.e. committed in a state of necessary defense, by virtue of Art. 32 of the Criminal Code of the Russian Federation is not a crime if the limits of necessary defense are not exceeded.

Exceeding the limits of necessary defense is recognized as a clear discrepancy between the defense and the nature and degree of public danger of the attack, as a result of which the offender is inflicted clearly excessive harm not caused by the situation (Part 3 of Article 32 of the Criminal Code). This means that the offender, defending his rights and legitimate interests, the rights of other persons, the interests of society, the state from a socially dangerous attack, unnecessarily takes the life of the attacker (for example, killing a person committing theft, causing death with a firearm to an unarmed hooligan, etc.) .

For the correct qualification of a murder committed when the limits of necessary defense were exceeded, the establishment of the subjective side of this crime is of paramount importance [10, p.56].

The law directly states that criminal liability for exceeding the limits of necessary defense can only be in cases of intentional harm, i.e. guilt must be established in the form of intent (direct or indirect). Causing death by negligence when exceeding the limits of necessary defense excludes criminal liability.

When deciding whether the limits of necessary defense were exceeded when causing the death of an attacker, judicial errors are often made [11, p. 37].

It is important to be able to distinguish between murder when the limits of necessary defense are exceeded from the same acts committed in a state of sudden strong emotional excitement, bearing in mind that when the limits of necessary defense are exceeded, the perpetrator, causing harm to the attacker, is guided by the desire to provide protection from a socially dangerous attack, whereas for crimes committed in a state of sudden strong emotional excitement, it is typical that harm is caused to the victim precisely under the influence of such excitement (physiological affect), and not for the purpose of protection. If the defender exceeded the limits of necessary defense and was at the same time in a state of sudden strong emotional disturbance, then his actions, depending on the consequences, should be qualified under Art. 102 of the Criminal Code or Art. 109 of the Criminal Code.

In accordance with Art. 66 of the Criminal Code of the Republic of Kazakhstan provides for the possibility of exemption from criminal liability in the event of intentionally causing the death of an attacker by exceeding the limits of necessary defense, if the defender acted out of fear, consternation or confusion.

Application of Art. 66 of the Criminal Code is possible if the following mandatory conditions are met:

- exceeding the limits of necessary defense must be allowed in a state of fear, fright or confusion;
the state of fear, fright, confusion must be caused by a socially dangerous attack;
when defending, there must be signs of necessary defense, including its excess.

A state of fear, fright or confusion is a state of mind in which a person, although he has not lost the ability to be aware of his actions, has still largely lost control over his actions and defends himself more instinctively than deliberately. The basis for the emergence of a state of fear, fright, or confusion in the defender is a clear threat of an attack or a socially dangerous attack itself, and, as a rule, it is sudden, when a person is not able to quickly react to a change in the situation, especially in difficult, extreme conditions of repelling a criminal attack. The actions of the defender must be aimed, first of all, at eliminating this danger [12, p. 346].

Actions in a state of fear, fright, confusion, resulting in exceeding the limits of necessary defense, involve their commission at the time of an attack or the immediate threat of an attack. Therefore, causing the death of a person after the end of the assault committed by him, although this is caused by a state of fear, fright or confusion, is not considered committed when the limits of necessary defense are exceeded and excludes the possibility of applying Art. 66 of the Criminal Code.

In case of a legitimate necessary defense, the defense must take place during a socially dangerous attack. In cases where the encroachment had not yet begun, there was no real threat of its implementation, and also when it ended, there was no state of necessary defense, and, therefore, there was no exceeding the limits of necessary defense [12, p. 71].

The state of necessary defense arises not only at the very moment of a socially dangerous attack, but also in the presence of a real threat of attack, also when the defense followed immediately after the act of at least a completed attack, but due to the circumstances of the case, the moment of its end was not clear to the defender.

Subject is a natural, sane person who has reached the age of 16.

Exceeding the limits of necessary defense can be discussed if there was a state of such defense. Murder in imaginary defense is not subject to qualification under Art. 100 UK. This article also does not apply in cases of murder with the help of various preventive, security means used to prevent possible attacks on property (use of electric current, explosives, etc.). Persons using such means are not in a state of necessary defense at the time of detection.

Murder committed in excess of the limits of necessary defense in the presence of the signs specified in paragraphs. “a”, “d”, “e”, “i” part 2 of Art. 100 of the Criminal Code should be classified not as murder under aggravating circumstances, but under Art. 102 of the Criminal Code.

This crime is considered completed from the moment the attacker dies, i.e. by design the composition of art. 102 CC PK - material.

An official who commits a murder in excess of the limits of necessary defense is liable under Art. 102 Criminal Code PK. Military personnel who commit murder while exceeding the limits of necessary defense during protection from attacks while performing military duties are held liable under the same article [4, p. 260].

Privileged types of murder include murder committed by exceeding the measures necessary to apprehend the person who committed the crime (Article 103 of the Criminal Code).

The object of the crime is the life of the detained person.

The objective side of the composition in question is to cause the death of the detainee by exceeding the measures necessary for his detention.

The conditions for the legality of causing harm during the detention of the person who committed the assault are disclosed in Part 1 of Art. 33 of the Criminal Code, according to which it is not a crime to cause the death of a detained person if the conditions for the legality of the act of detention are met and does not entail criminal liability. Exceeding the measures necessary to detain a person who has committed an assault is recognized as their obvious discrepancy with 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 caused clearly excessive harm not caused by the situation [13].

Such an excess may occur in cases where the detainee did not offer resistance and was not capable of harming anyone’s interests during detention, i.e. there was a clear discrepancy between the harm (death) caused to the detainee, which is considered excessive and not caused by the situation.

To bring to justice under this article of the Criminal Code, it is necessary first of all to establish whether the perpetrator had grounds for detaining the victim, provided for in Art. 131 Code of Criminal Procedure PK, and also whether there were grounds for causing harm to the detained person, provided for in Art. 33 of the Criminal Code. If a murder is committed in the absence of the specified grounds, then the qualification of the actions of the perpetrator under Article 103 of the Criminal Code is excluded. For example, if the murder of a person was committed during detention for an administrative offense (minor hooliganism) or the murder of a detained person who committed a crime, if he did not try to evade arrest.

The use of firearms is permissible only against persons who have committed grave and especially grave crimes. The use of weapons and such means that endanger the life of the person who committed the crime is permissible both when the latter resists arrest and when the person who has committed a serious or especially serious crime tries to escape. It is impossible to agree with the opinion existing in the theory of criminal law that the murder of a criminal who is trying to escape (to run away, drive away in a car, etc.) should be considered as exceeding what is necessary for detention (the argument of supporters: the culprit should be brought to justice, and not be killed due to the fact that he sought to avoid criminal liability [14, pp. 86, 87].

The crime is considered completed from the moment of death of the detained person, i.e. By design, the composition is material.

The subjective side is characterized by direct or indirect intent. The perpetrator consciously exceeds the limits of permissible measures of detention, foresees the possibility or inevitability of causing death to the detainee, and wants or consciously allows the possibility of these consequences to occur, or is indifferent to this. Causing death by negligence to a detained person who has committed an assault does not form part of the crime in question [4, p.261].

The purpose of detaining the person who committed the attack is to bring him to law enforcement agencies and prevent him from committing other crimes. Whatever the purpose of the detention, causing harm to the detainee does not serve as a circumstance excluding the criminality of the act if it was possible to detain the person by other means. This is directly stated in Part 2 of Art. 33 Criminal Code PK. If there is such a possibility, causing the death of a detainee is unlawful and should not be considered as “exceeding the measures necessary for detention.” If a person does not resist and does not try to escape, intentionally causing his death is unacceptable and is qualified either as murder under Part 1 or Part 2 of Art. 100 of the Criminal Code of PK, or as a murder committed in a state of passion - under Art. 101 UK PK.

The subject of the crime is a sane individual who has reached the age of 16, regardless of the type of professional activity and special skills, i.e. both law enforcement officers and others.

In cases where a law enforcement official, when detaining a criminal, exceeds the measures necessary for detention and causes the death of the detainee, liability arises under Art. 103 of the Criminal Code without additional qualification on liability for abuse of power or official authority.

If the murder is committed in excess of the measures necessary to detain the person who committed the crime, in the presence of aggravating circumstances provided for in Part 2 of Art. 100 of the Criminal Code, then the act should be qualified only under Art. 103 CC (without additional qualification for 100 CC).

Thus, the murders discussed in this subsection relate to murder under mitigating circumstances, i.e. to privileged types of murder. In addition to murder, crimes against life also include attacks on life that are not related to murder.

Literature:

Criminal law of the Republic of Kazakhstan. A common part. 2nd ed., rev. and additional - Almaty: Zheti Zhargy, 2003. - 304 p.
Regulatory Resolution of the Supreme Court dated May 11, 2007 No. 4 “On some issues of qualification of crimes related to rape and other violent acts of a sexual nature” // Electronic database of legislation “Paragraph”, 2015.
Livshits S. Criminal legal assessment of attacks on human life and health. — Almaty: Atamura. 11026. - 287 p.
Commentary on the Criminal Code of the Republic of Kazakhstan. General and Special Parts / General ed. I.Sh. Borchashvili. Ed. 2nd. — Almaty: Geti Zhargy. 2007. - 1022 p.
The mechanism of human aggression. Collection of scientific papers. - Almaty. 2000. - 168 p.
Borodin S.V. Crimes against life. - M., 11029. - 182 p.
Borodin S.V. Responsibility for murder, qualification and punishment under Russian law. -M., 11024. -215 p.
Sarkisov G.S., Krasikov Yu.A. Responsibility for crimes against life, health, freedom and dignity of the individual. - Yerevan, 1997. - 316 p.
Crime and legislation. Collection ed. Dolgova A.I. - M., 1997. - 452 p.
Volkov B.S. Motive and qualification of crimes. - Kazan. 1969. - 349 p.
Rakhmetov S.M., Turetsky N.N. Crimes against the person: Textbook. — Almaty: Geti Zhargy. 2004. - 176 p.
Criminal law of Kazakhstan: Textbook / Edited by Rogov I.I., Rakhmetov S.M. - Almaty, 2001. - 537 p.
Criminal Code of the Republic of Kazakhstan dated July 3, 2014 No. 226-v (with amendments and additions as of September 10, 2015) // Electronic database of legislation “Paragraph”, 2015.
Bazhanov M.I. Criminal liability for crimes against the person. — Kyiv, 11027.-346 p.

Murder in the heat of passion

Affect is a strong emotional outburst that can cause a person to lose control of his actions.

To confirm this circumstance, a mandatory medical examination is required.

Affect can be of two types:

Legal – slowing down of mental activity and partial loss of behavioral control.
Medical – complete loss of control over one’s own actions.

With a strong pathological affect, a person for a few seconds is able to demonstrate high levels of strength or other physical superiority that are not inherent in him in ordinary life.

After such a state, as a rule, a person experiences a general inhibition of all processes in the body. Often he even forgets what happened. This state is recognized as insanity.

As a rule, affect is possible as a response to long and systematic bullying of a person. After this, in one moment the victim can turn into the killer of his tyrant.

Composition of the crime and responsibility under Art. 107 of the Criminal Code of the Russian Federation

Privileged murder in a state of passion has always existed since pre-revolutionary times. But the current Code has expanded responsibility for it.

The privileged composition of the offense is as follows:

The object is the life of the victim, his psycho-emotional state, which was subjected to regular violence.
The objective side is the presence of a sudden strong emotional disturbance, as a result of which a person committed a murder.
The subjective side is the direct or indirect intent to kill. Moreover, intent must always arise suddenly at the moment of conflict with the victim. Motives do not matter for qualifications.
Subject is a 16 year old individual who is in severe emotional distress.

Murder under Art. 107 of the Criminal Code of the Russian Federation must necessarily be caused by violence, bullying or insult on the part of the victim.

For this, the perpetrator faces:

Correctional labor for up to 2 years;
Restriction of freedom up to 3 years;
Forced labor for up to 3 years;
Imprisonment for up to 3 years.

If two or more people are killed in a state of passion, the offender can receive a real prison sentence of up to 5 years.

Privileged murder squads

Privileged (with mitigating circumstances) types of murder (Articles 106, 107, 108 of the Criminal Code) + 2 additional types of murder that are not related to either privileged or qualifying murders, they are independent. It is accepted that crimes against life can be divided into three groups: 1 group. Murders (Articles 105 – 108 of the Criminal Code of the Russian Federation) and just groups 2 and 3 – this is Art. 109, 110 which should not be forgotten either.

The murder of a newborn child by a mother during or immediately after childbirth, as well as the murder by a mother of a newborn child in a psychotraumatic situation or in a state of mental disorder that does not preclude sanity, is punishable by restriction of freedom for a term of two to four years, or by forced labor for a term of up to five years, or imprisonment for the same period.

The object is the life of a newborn child.

The objective side consists of the alternatively envisaged commission of murder:

during or immediately after childbirth;
in a traumatic situation;
in a state of mental disorder of the mother, which does not exclude sanity.

The subjective side is characterized by guilt in the form of direct or indirect intent.

Subject : a special, natural, sane person who has reached the age of 16, the mother of a newborn child.

Murder in the heat of passion (Article 107)

1. Murder committed in a state of sudden strong emotional excitement (affect) caused by violence, bullying or grave insult on the part of the victim or other illegal or immoral actions (inaction) of the victim, as well as a long-term psychologically traumatic situation that arose in connection with systematic illegal or immoral behavior of the victim.

The object of the crime is an attack on human life (a group of social relations that can be attributed to the rights and freedoms of man and citizen)

The objective side consists of a murder committed in a state of sudden strong emotional excitement ( affect ) caused by violence, mockery or grave insult on the part of the victim, or other illegal or immoral actions (inaction) of the victim.

Murder in a state of passion has the following characteristics :

suddenness

strong emotional disturbance;

the affect is caused by violence, bullying or grave insult on the part of the victim or other illegal or immoral actions (inaction) of the victim.

The subjective side of murder in a state of passion is characterized by guilt in the form of sudden direct or indirect intent. The subject of a murder in a state of passion is a natural, sane person who has reached the age of sixteen (general subject).

Persons aged fourteen to fifteen years are not liable for intentionally causing death in a state of strong mental agitation.

● Murder committed when exceeding the limits of necessary defense or when exceeding the measures necessary to apprehend the person who committed the crime (Article 108)

The concept of exceeding the limits of necessary defense is given in Part 2 of Art. 37 of the Criminal Code are deliberate actions of the defender that are clearly inconsistent with the nature and danger of the attack. The actions of a defending person do not exceed the limits of necessary defense if this person, due to the surprise of the attack, could not objectively assess the degree and nature of the danger of the attack.

Object - social relations in the field of human life safety.

The objective side is expressed in the form of an encroachment on especially protected social relations. The killing of an attacker through negligence does not imply the emergence of legal liability provided for by the sanction of this article.

The subjective side is characterized by guilt in the form of direct or indirect intent.

Subject : a natural, sane person who has reached the age of 16.

● Causing death by negligence (Article 109)

As noted above, causing death by negligence under the Criminal Code is not considered murder. The use of a broader concept in the commented article allows us to freely operate with this norm in cases of careless deprivation of the life of a victim in the process of carrying out professional activities by the perpetrator in violation of any safety rules (if there is no special norm in the Criminal Code).

Causing death by negligence is possible both through thoughtlessness and negligence. Causing death by negligence should be distinguished from innocent causing of death, when a person: a) did not foresee the possibility of the death of the victim from his actions (inaction) and, due to the circumstances of the case, should not or could not have foreseen them; b) although he foresaw the possibility of causing death, he could not prevent this due to the inconsistency of his psychophysical qualities with the requirements of extreme conditions or neuropsychic overload.

The objective side is expressed in the commission of an act in the form of action or inaction.

Composition by design : material, that is, the crime is considered completed at the moment of biological death.

The subjective side is expressed by guilt in the form of negligence (criminal frivolity or criminal negligence). It is this circumstance that distinguishes causing death by negligence from murder.

Subject : general.

● Incitement to suicide (Article 110 of the Criminal Code)

Driving a person to suicide or attempted suicide through threats, cruel treatment or systematic humiliation of the victim’s human dignity is punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to five years, or imprisonment for the same term.

The object of the crime is the human right to life.

The objective side of incitement to suicide consists in the commission of an action or inaction, namely in driving a person to suicide or attempted suicide.

The subjective side of the composition presupposes not only the presence of intent, but also negligence. Subject : general.

The object is the life of a newborn child.

The objective side consists of the alternatively envisaged commission of murder:

during or immediately after childbirth;
in a traumatic situation;
in a state of mental disorder of the mother, which does not exclude sanity.

The subjective side is characterized by guilt in the form of direct or indirect intent.

Subject : a special, natural, sane person who has reached the age of 16, the mother of a newborn child.

Murder in the heat of passion (Article 107)

The object of the crime is an attack on human life (a group of social relations that can be attributed to the rights and freedoms of man and citizen)

Murder in a state of passion has the following characteristics :

suddenness

strong emotional disturbance;

the affect is caused by violence, bullying or grave insult on the part of the victim or other illegal or immoral actions (inaction) of the victim.

Persons aged fourteen to fifteen years are not liable for intentionally causing death in a state of strong mental agitation.

● Murder committed when exceeding the limits of necessary defense or when exceeding the measures necessary to apprehend the person who committed the crime (Article 108)

Object - social relations in the field of human life safety.

The subjective side is characterized by guilt in the form of direct or indirect intent.

Subject : a natural, sane person who has reached the age of 16.

● Causing death by negligence (Article 109)

The objective side is expressed in the commission of an act in the form of action or inaction.

Composition by design : material, that is, the crime is considered completed at the moment of biological death.

Subject : general.

● Incitement to suicide (Article 110 of the Criminal Code)

The object of the crime is the human right to life.

The objective side of incitement to suicide consists in the commission of an action or inaction, namely in driving a person to suicide or attempted suicide.

The subjective side of the composition presupposes not only the presence of intent, but also negligence. Subject : general.

Exceeding the limits of defense

A murder committed when the limits of necessary defense are exceeded is due to the presence of a factor of excessiveness in the actions of the victim. The injured party, wanting to protect itself, and not thinking about causing the death of the attacker, in an instant becomes the subject of the crime.

For correct qualification, great importance is given to the time of counteraction. It must be carried out immediately in response to an attack.

In practice, in 2022, it is very difficult to say unambiguously whether the victim’s reaction in a particular case was normal or excessive.

For example, a criminal could put a dummy weapon on the victim’s back, but the victim perceived it as a real one. In response, he could turn around and stab the attacker with a fatal blow.

The corpus delicti and responsibility under Part 1 of Art. 108 of the Criminal Code of the Russian Federation

If an attack against a person involves violence or the threat of such violence, he has the right to self-defense without limiting its limits.

The composition of the offense in this case has its own characteristics:

The object is the life of the offender, whose actions were not associated with the use of violence or the threat of its use.
The objective side is socially dangerous actions that clearly do not correspond to the nature and degree of danger on the part of the victim.
The subjective side is characterized by direct, but more often indirect, intent. These actions are always spontaneous, so in this case there can be no talk of preparation for murder.
The subject of the crime may be a sane person over the age of 16 years.

Part 1 art. 108 of the Criminal Code of the Russian Federation provides for the following options for liability for exceeding the limits of necessary defense:

Correctional labor for up to 2 years;
Restriction of freedom up to 2 years;
Forced labor for up to 2 years;
Imprisonment for up to 2 years.

Obviously, the amount of punishment for taking a person’s life is quite symbolic. It's no wonder that many murderers try to disguise their actions as privileged crimes.

Exceeding the measures of detention of a criminal

In this case, the murder also involves the factor of excess, which in fact could have been dispensed with when apprehending the offender. The investigation takes into account, first of all, the degree of danger of the actions of the troublemaker, who subsequently became a victim of murder.

The persons involved in this type of privileged murder are not only ordinary citizens, but also law enforcement officers whose responsibilities include detaining violators.

For them, more detailed requirements for limiting the permissible limits of detention are reflected in special laws.

So, for example, the Federal Law “On the Police” states that the use of weapons is permitted when detaining criminals committing serious or especially serious crimes . However, it also contains a ban on the use of weapons in large crowds of people.

The corpus delicti and responsibility under Part 2 of Art. 108 of the Criminal Code of the Russian Federation

Not only police officers have the right to detain a criminal. Every citizen can use it from the moment the crime begins, which he unwittingly witnessed.

The corpus delicti is presented as follows:

The object is the life of the person who committed the crime.
The objective side is actions that exceed the need to detain the attacker, the consequences in the form of his death and the cause-and-effect relationship between these phenomena.
The subjective side can manifest itself in the form of direct and indirect intent. Detention can be carried out based on two purposes: bringing the culprit to the authorities and preventing him from committing new illegal actions. In the first case, there is indirect intent, in the second - direct and indirect.
The subject of the crime is a sane person who has reached the age of 16.

For exceeding the measures during detention, the guilty person may be subject to criminal liability in the form of restriction of freedom, forced labor or imprisonment for up to 3 years.

Criminal liability for privileged types of murders is of a more mitigating nature and extent than for ordinary crimes against human life.

Privileged murders cannot be planned; they are always carried out spontaneously due to certain external circumstances or internal characteristics of the personality of the guilty person.