Commentary to Art. 106 Criminal Code
1. The murder of a newborn child by a mother becomes a crime with mitigating circumstances if it occurs in the presence of one of three signs: a) during or immediately after childbirth; b) in a psychotraumatic situation or c) in a state of mental disorder that does not exclude sanity.
2. For the first mitigating circumstance, a newborn, according to forensic medicine, is a child under one day of age. The legislator assumes that during this period the woman in labor has certain deviations in her psychophysical state that affect her ability to understand her behavior and make decisions. If in a particular case it turns out that childbirth did not cause any mental disorders, but nevertheless the mother took the life of the child during or immediately after childbirth, then even then the act is qualified under Art. 106 of the Criminal Code.
3. For two other mitigating circumstances, a newborn is a child under four weeks of age. What is common to the types of murder under consideration is that the subject of the crime, i.e. a mother who has reached the age of 16 is in a special psychophysical state caused either by a traumatic situation or by mental disorders that do not exclude sanity.
A psychotraumatic situation can arise before and after childbirth, as a result of which the mother of a newborn experiences an accumulation of negative emotions, which reduces her ability to adequately evaluate her actions, limits her ability to control her actions and predict their possible consequences.
4. The murder of a newborn is possible both with sudden and premeditated direct or indirect intent.
5. Complicity in the form of co-execution of persons in the murder of a newborn child by a mother entails liability under paragraph “c” of Part 2 of Art. 105 of the Criminal Code.
Second commentary to Art. 106 of the Criminal Code of the Russian Federation
1. The murder of a newborn child by a mother (Article 106 of the Criminal Code) is characterized by signs that distinguish it from the main elements of murder:
a) special characteristics of the subject of the crime and the victim; b) the time the crime was committed;
c) the emotional state of the person guilty of committing a crime.
2. The subject of the type of murder under consideration can only be the biological (in the case of surrogacy - surrogate) mother, who has reached the age of sixteen at the time of the crime.
3. The legislation of the Russian Federation defines obstetric, pediatric and forensic medical criteria for the concept of a newborn child. The forensic medical criterion characterizes the biological characteristics of the child’s body after birth. According to this criterion, a newborn is considered a child in whom the signs of the fetus have not disappeared (external: presence of an umbilical cord; cheese-like lubricant; traces of blood on the skin in the absence of damage; internal: birth tumor, meconium in the colon). The forensic criterion is also used for the purpose of identifying a biological organism. The listed biological signs of a newborn, according to the forensic medical criterion, persist for 1 day. Forensic medical characteristics of a newborn child are alternative. A child is considered a newborn within 168 hours (7 days) after birth, regardless of the presence of fetal signs. The characteristics of the subject of murder by the mother of a newborn child depend on the circumstances of the murder specified in the law. Thus, if a murder is committed during or immediately after childbirth, then the signs of a newborn should be established on the basis of a biological forensic medical criterion (presence of fetal signs) and associated with a period of 1 day.
In other circumstances, when the murder of a child is committed by his mother under the influence of a psychotraumatic situation, the signs of a newborn do not have a close connection with the circumstances of childbirth. The legislator identifies these objective circumstances according to social criteria. Social criteria (pediatric) can also be used to characterize a newborn child. According to these criteria, the child is physiologically dependent on the mother and needs observation, assistance and patronage for 1 month.
4. The time the mother committed the murder of her newborn child is an objective circumstance provided for by law that determines the duration of a legally significant situation, namely the duration of the physiological process of childbirth or the physiological postpartum state (during the period of physiological recovery, adaptation of the woman’s body after childbirth). This criterion is, as already noted, objective and formal. The subjective side of the mother’s behavior at the time of committing the murder specified by law does not matter. Even the malicious behavior of the mother during the designated period should be qualified under Art. 106 of the Criminal Code.
5. The emotional and mental state of the mother in a psychotraumatic situation or in a state of mental disorder that does not exclude sanity. This criterion is evaluative and does not depend on the circumstances of the time the murder was committed. Childbirth can affect a woman's nervous system to varying degrees. As a result of birth trauma, psychosis and neuralgia sometimes develop. The medical literature notes that postpartum psychosis occurs within 6 weeks after childbirth.
Who got tougher punishment and for what?
3 Feb 2022 17:57
Quantity
On January 11, 2022, “On introducing amendments and additions came into force. Important document. It introduces new legislation for a number of common offences.
Adviser of Justice B. Erzhappar talks about them
About domestic tyrants
The problem of domestic violence is relevant both for the country and for Shymkent, a city with a population of one million, in particular. The abolition of fines for domestic rowdies caused a great outcry in society. The people began to be indignant that this made it better only for family tyrants.
— Yes, fines for those who abuse their relatives have been abolished. But the changes made to the section of the Code of Administrative Offenses on domestic violence are aimed at toughening punishment for violent heads of families. The fine was replaced with a warning. Why?
Firstly, paying the fine affected the family budget. Secondly, a warning is also a punishment. If there is a repeated excess, the spouse will immediately be taken into custody for ten days. Article 73 of the Code of Administrative Offenses “Unlawful actions in the sphere of family and domestic relations” was supplemented with articles 71-1 “Intentional infliction of minor harm to health” and 71-2 “Beatings”. And if the beatings are systemic in nature, then this is already a criminal offense provided for in Article 110 of the Criminal Code of the Republic of Kazakhstan “Torture”. The punishment under it is imprisonment for a term of four to seven years, in the old version - from three to seven years. Now all appeals from women beaten by their husbands are registered in a unified register of offenses. The victim will no longer be able to withdraw the statement that she wrote against her spouse or cohabitant. And the decision on the rowdy’s case will be made by the court. There will be no reconciliation of the parties, as there was before, even if the wife forgives and insists on ending the conflict.
About drunk drivers on the road
The Tyulkubas district court was the first in the Turkestan region to apply the new law. He was arrested for 15 days and deprived of his license for seven years for a driver who was driving while intoxicated.
— Sanctions for driving while intoxicated have been seriously tightened. Let me give you some alarming statistics. In 2022, 324 road accidents occurred in Shymkent, in which 77 people died and 409 were injured. Among those responsible for road accidents are those who were drunk while driving. To stop the disaster, punitive measures have been stepped up. A new article 345-1 “Driving a vehicle by a person deprived of the right to drive a vehicle while intoxicated for committing an accident” has been introduced into the Criminal Code. The penalty is lifelong deprivation of a driver's license.
The fine under Article 346, Part 1 of the Criminal Code of the Republic of Kazakhstan “Driving a vehicle by a person deprived of the right to drive a vehicle while under the influence of alcohol, drugs and (or) substance abuse, as well as transferring control of a vehicle to such person or permission to drive a vehicle of such a person.”
In addition to the fine, the new version provides for correctional and community service, restriction of freedom, imprisonment for up to five years with lifelong deprivation of the right to hold certain positions or engage in certain activities. And if a drunk driver commits an accident and causes minor harm to someone’s health, he faces imprisonment from 4 to 6 years, if causing moderate harm - from 5 to 7 years, serious harm - from 6 to 8 years with lifelong deprivation of the right to drive vehicle.
Oxygen cut off for cattle thieves
Theft, especially of livestock, is a headache not only for Shymkent, but also for the entire Turkestan region. In the million-plus city, they accounted for 55.7 percent of all registered criminal offenses last year.
— A new article 188-1 “Cattle Theft” has now been introduced into the Criminal Code, its sanctions are severe. For the theft of someone else's livestock, you can now receive a fine of up to 3,000 MCI, as well as go to jail for up to five years with confiscation of property. And for cattle theft as part of a criminal group or on an especially large scale - from seven to 12 years with confiscation of property. So, before sneaking into someone else’s barn for livestock or stealing horses, cows, sheep from pasture, thieves need to think ten times, weigh whether the sheep is worth the candle.
Liability has also been increased for theft with illegal entry into a residential, office or industrial premises, storage facility or vehicle - clause 3 of part 3 of article 188 of the Criminal Code of the Republic of Kazakhstan. If earlier the punishment for this was up to five years in prison, now it is from two to seven.
For propaganda and advertising of drugs
The law introduced a new article 299-1 into the Criminal Code of the Republic of Kazakhstan, providing for criminal liability for propaganda or illegal advertising of narcotic drugs.
— Propaganda in this context means the dissemination of any information about drugs, the “secrets” of their manufacture, etc. Illegal advertising — where and how one can purchase such a poison. Under this article you can get up to three years in prison.
If propaganda and illegal advertising are committed repeatedly, in a university, school, other educational institutions, crowded places, in the media or electronic information resources, using an official position, this carries a penalty of three to six years in prison.
Articles 297 of the Criminal Code of the Republic of Kazakhstan “Illegal manufacture, processing, acquisition, storage, transportation for the purpose of sale, transfer or sale of narcotic drugs, psychotropic substances, their analogues” and 299 “Inducement to use narcotic drugs, psychotropic substances and their analogues” introduced new qualifying criteria. signs: “use of electronic information resources” and “in public places.” Now, for drug trafficking on the Internet and in public places, you can be sent to prison for up to 15 years, and for selling drugs to minors in such ways - for life.
Those previously included in the category of medium gravity - rape (Part 1 of Article 120) have been transferred to the category of serious crimes; previously the punishment was from three to five, now - from five to eight years of imprisonment; violent acts of a sexual nature (part 1 of Article 121), for which the same period is provided. According to them, reconciliation of the parties is not allowed.
Tatiana Koretskaya
