Murder under aggravating circumstances (Part 2 of Article 105 of the Criminal Code of the Russian Federation)

Murder, that is, causing the death of another person, is the most terrible and most punishable crime possible, and not only in Russia, but throughout the world. In a number of countries, the death penalty is provided for this act under certain circumstances. This type of crime is especially noticeable if there are aggravating circumstances. But what it is and what punishment is provided for it will be discussed in this article.

Aggravating circumstances in case of murder increase the punishment.

Aggravating circumstances

The legislator has established an explanation for this term - these are legal facts and conditions that require a more severe punishment to be imposed on the perpetrator due to the fact that they negatively characterize his personality or increase the degree of social danger of the act. The Criminal Code of the Russian Federation, Part 2 of Article 105, provides a list of signs, the presence of which significantly increases the degree and severity of responsibility. The list of these signs looks like this:

• murder of two or more persons;
• a person or his relatives in connection with the person’s performance of official activities or the performance of public duty;
• a minor or other person who is known to the perpetrator to be in a helpless state, as well as associated with the kidnapping of a person;
• women who are known to be pregnant by the perpetrator;
• committed with particular cruelty;
• committed in a generally dangerous manner;
• based on blood feud;
• committed by a group of persons, a group of persons by prior conspiracy or an organized group;
• for selfish reasons or for hire, as well as associated with robbery, extortion or banditry;
• for hooligan reasons;
• with the aim of concealing another crime or facilitating its commission, as well as involving rape or sexual assault;
• for reasons of political, ideological, racial, national or religious hatred or enmity, or for reasons of hatred or enmity towards any social group;
• for the purpose of using the victim’s organs or tissues.

Actions falling under this list are terrible and contrary to any moral, human and religious ideas.

Difficulties that arise in determining this classification

The main problem that may arise during the investigation is precisely establishing the fact of cruelty or its absence. This classification can be assessed according to two criteria, which, in fact, complicates the situation. Firstly, the very concept of cruelty. Secondly, the Criminal Code speaks specifically about special cruelty. That is, it is even something more, roughly speaking – extreme, higher.

The definition of murder with particular cruelty in the Criminal Code cannot be called stable. For example, the judicial panel of the RSFSR recognized as such a case when one brother, in a fit of anger, inflicted only a few stab wounds on the other. At the same time, in the case where 12 blows were applied to the neck with a scalpel, they did not find any particular cruelty.

Several indicators have been developed in response to the occurrence of such difficulties. They meet the definition of “special cruelty.” The main aspect here is to obtain satisfaction from the pain and suffering caused to the victim. Namely:

• torture;
• use of poison;
• torture by starvation;
• beating;
• rape.

If the case refers to at least one of the above-described circumstances, it automatically falls under paragraph “e” of Part 2 of Article 105 of the Criminal Code. Murder with special cruelty can also be determined if the offender inflicted multiple stab wounds on his victim, etc.

Characteristic

It is worth explaining what the legislator includes in these concepts:

• “A” – murder of two or more persons – here, accordingly, there must be two or more victims;
• “B” - a person or his relatives in connection with the person’s performance of official activities or the performance of a public duty - the act is carried out in order to prevent the victim or his relatives from performing their official or public duties or as revenge for their commission.

The performance of official activities should be understood as the actions of a person included in the scope of his duties arising from an employment agreement (contract) with state, municipal, private and other duly registered enterprises and organizations, regardless of the form of ownership, with entrepreneurs whose activities do not contradict the current legislation

The fulfillment of public duty is understood as the fulfillment by a citizen of both the duties specifically assigned to him in the interests of society or the legitimate interests of individuals, as well as the commission of other socially useful actions (suppression of offenses, reporting to authorities about a crime committed or being prepared, or about the whereabouts of a person wanted in connection with committing offenses, giving evidence by a witness or victim incriminating a person in committing a crime, etc.)

The victim, along with close relatives, may include other persons who are related to him or her (spouse's relatives), as well as persons whose life, health and well-being are known to the perpetrator to be dear to the victim due to established personal relationships.

Example 1. Criminals, carrying firearms and crowbars, entered the territory of the plant in order to seize material assets (production raw materials). At this time, according to the established routine of walking around the territory, the guard Ivanov notices the thieves and shoots in the air as a warning. One of them, previously convicted, in pursuit of the goal of finishing what he started, kills a security guard with the pistol he has on him.

Example 2. Citizen Ivanov is an eyewitness in a criminal case. The criminals understand that the evidence that Ivanov can provide will completely expose them. In this regard, Ivanov begins to receive threats against his family, and after these threats were ignored, the criminals kill a close relative of the eyewitness and threaten that the situation will repeat itself. These threats have already had an effect, and Ivanov refused to testify.

• “B” – children, people with mental disorders, the seriously ill and the elderly, that is, those who, due to insurmountable circumstances, are not able to provide active and targeted resistance due to their physical or psychological condition.

In order to eliminate and, to some extent, discredit one influential person, a criminal group decides to kill the elderly paralyzed parents of the above-mentioned person, who are in a specialized institution. Penetrating into the clinic under the guise of guests, they, using a noose, alternately take the lives of both spouses. From the example it is clear that the victims could not offer any resistance, which is precisely typical for the application of point “B”.

• “G” – an attack is made on the life of a woman and her unborn child.

A number of difficulties arise here. The criminal knew that the victim was pregnant, but the fact of pregnancy was not confirmed by examination. Accordingly, if this unlawful act does not contain other qualifying features, then the punishment will be imposed in accordance with the provisions of Part 1 of Art. 105 of the Criminal Code of the Russian Federation. The perpetrator did not know that the woman was pregnant. Here, too, qualification is impossible, since there is no established sign of “knowledge”.

Therefore, it is quite problematic to prove what exactly the criminal knew or did not know. And it is necessary to understand that the presence of visible signs of an “interesting situation” is not necessary, since to apply paragraph “d”, oral notification and confirmation of this fact and the reality of pregnancy are sufficient.

Young family. During a quarrel between the spouses, the pregnant wife said the following phrase: “I’m leaving you for someone else, and in general the child is not yours.” The husband, in a fit of anger, takes the first thing that comes to hand (a kitchen knife) and inflicts a series of stabbing blows to the abdomen, which ultimately led to the death of the woman and the unborn child.

• “D” - such a concept as “special cruelty” is associated not only with the method of murder, but also with the circumstances that indicate cruelty to the victim, these include: torture and torture;
• mockery;
• burning alive;
• sending poison;
• deprivation of food and water.

Another important point is that this act is qualified as especially cruel even if it was committed in front of the victim’s close relatives, and the offender realized that his actions were causing them special suffering. Surely many have seen similar situations in films, when criminals, wanting to get the necessary information, tortured or killed his friends or family members in front of the victim, unfortunately, this happens in real life.

The destruction or abuse of a corpse cannot be qualified under paragraph “D”; in this case, Article 244 of the Criminal Code of the Russian Federation “Desecration of the bodies of the dead and their burial places” comes into force.

• “E” – a generally dangerous method of murder means the following circumstances: explosions;
• arson;
• poisoning of public water and food sources;
• shooting in a crowded place;
• using a vehicle as a battering ram or to organize an accident.

The list is not exhaustive, the main thing that needs to be understood is that for qualification under paragraph “e” the fact of causing harm or death to a third party is not required; the fact of using a generally dangerous method is sufficient.

At their core, these actions (shooting, explosions) border on the concept of “terrorism,” and this line between them is achieved only due to the absence of the original intent of the perpetrator to cause harm to third parties. Currently, cases of shooting in public places have become more frequent. Previously, such a practice often happened in countries with loyal and freer access to weapons, but this trend has reached the Russian Federation.

Surely many have heard in news programs about a schoolboy who came to an educational institution and began to shoot at a teacher with whom he had a bad relationship. He shot with shot, which in itself (due to the dispersion of the damaging elements) is extremely dangerous for those around him, and the time he chose was when the school was full of people and at the stage of an active educational process. As a result, a large number of victims were avoided, but the schoolboy managed to shoot “his offender.”

Here is a non-fictional example from reality that fully explains the meaning contained in paragraph “e”.

• “F” – blood feud refers to the actions and/or desires of a person to take revenge on a person (or his relatives) who previously insulted or offended the criminal and/or his family.

As many probably know, this practice is especially widespread in the Caucasus (Chechnya, Dagestan, Ingushetia).

Example. Resident of the Chechen Republic Full name 1 is a representative of one of the local ethnic groups. A friend (full name 2) came to visit him from Moscow. One day, Full Name 1 returned from work earlier than usual and “caught” his wife and friend on the marriage bed. Full Name 1 It is not possible to immediately “punish” the offender, since he managed to escape. Together with his brothers, Full Name 1 goes to Moscow, where he searches for Full Name 2 and kills him in retaliation for the insult (without the participation and presence of his brothers).

• “Z” - 3 categories are distinguished:

A group of persons - that is, the act was committed by two or more persons who did not previously discuss these actions.

Example. A company of three young people left the nightclub into the fresh air. At this time, a fairly drunk citizen approaches them and begins to provoke them into a fight in every possible way. The young people could not stand the impudence and, without agreeing, together they delivered a series of blows with their fists to the victim’s head. The victim died from the blows he received.

Preliminary conspiracy - accordingly, there must be a preliminary agreement between two or more persons to commit a murder. This type of crime may be accompanied by a distribution of roles, and also involves co-execution.

Organized group – as defined by the legislator:

This is a group of two or more persons united by the intent to commit one or more murders. As a rule, a crime is carefully planned, murder weapons are prepared in advance, and roles are distributed among group members.

• "AND". Murder for mercenary motives is committed with the aim of obtaining, taking possession of material assets and/or property, as well as possible release from fulfillment of obligations (loans, contracts, credits).

Example 1. Citizen Ivanov borrowed a large sum of money from his friend against a receipt and a large interest rate. Ivanov was not able to fulfill his debt obligations according to the agreements, and a significant “delay” formed. Ivanov begins to receive veiled threats that if he does not return the money in the near future, the debt will double. Ivanov decides to eliminate the “cause” of his troubles and kills the creditor.

Murder for hire, commonly known as “contract murder,” is characterized by the presence of a customer and a performer, and is also conditioned by the receipt by the performer of remuneration from the customer.

Example 2. The same situation as described in example 1, only Ivanov decides to hire a “professional”, that is, a “killer” for his plan, automatically becoming a “customer”, and the killer becomes a “performer”.

Murder associated with robbery, extortion or banditry - here, together with Article 105 of the Criminal Code of the Russian Federation, articles corresponding to these types of crimes are also applied: robbery - 162 of the Criminal Code of the Russian Federation, extortion - 163 of the Criminal Code of the Russian Federation, banditry - 209 of the Criminal Code of the Russian Federation.

• "TO". Based on legal provisions, this crime is committed on the basis of disrespect for society and generally accepted moral standards.

Essentially, it is causing the death of another person without apparent circumstances, simply because of disagreement with the opinion of society and/or in the form of a protest against something.

• "L". The provisions specified in this paragraph are characterized and interpreted as follows: Murder in order to conceal a crime - an unlawful act is committed to conceal the circumstances of an already committed crime, or one that is in preparation. For example, a robber kills the owner of an apartment who discovered him while committing a theft.
• Murder in order to facilitate the commission of another crime is committed to exert pressure or remove obstacles to the implementation of the act.
• Murder involving rape or sexual assault. Legislatively, they are divided into different articles (131 and 132 of the Criminal Code of the Russian Federation), but are very close in meaning.

For example, a rapist kills his victim in order to cover up a crime that has already been committed. Here the culprit will also be classified under paragraph “k” of Part 2 of Art. 105, and the corresponding part 131 or 132 of the Criminal Code of the Russian Federation, and the amount and severity of the punishment will be based on the totality.

• "M". Hatred or hostility is manifested in repulsion and non-acceptance of political, ideological, racial, national and religious beliefs.

For example, political hostility may manifest itself in the assassination of a politician by a member of the opposition party.

• "N". The ultimate goal - the use of the obtained biological material - is not the determining factor. The main qualifying feature is the presence of the fact of using the tissues and organs of the killed person for one’s own purposes.

Excludes murder with extreme cruelty...

In general, the infliction of suffering after death is a controversial issue. The court will take into account all the circumstances of the case to make a final decision on whether a particular crime was committed with particular cruelty. But most often, mockery of the body after death is not considered particularly cruel, nor is dismemberment, which occurred, of course, after the person was killed. However, these circumstances are also taken into account when determining the term of punishment.

Responsibility

Criminal liability for murder with the classification criteria that were discussed above is established in accordance with the same part 2 of Article 105 of the Criminal Code of the Russian Federation.

It consists of the following:

shall be punishable by imprisonment for a term of eight to twenty years with restriction of freedom for a term of one to two years, or life imprisonment, or the death penalty.

The death penalty is not applied in the Russian Federation, so the maximum penalty is life imprisonment.

Problems of differentiation from other compounds

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. If the lawyer manages to prove that there was no such intent, then the crime will be classified under Art. 111 of the Criminal Code of the Russian Federation, which means a reduction in the sentence for the guilty person.

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. Contact us also in the case when an attempt was made on your life and you want to punish the criminal. We will definitely help you present to the court evidence that there was intent to kill. Call or leave your request on our website.