Article 107 of the Criminal Code of the Russian Federation “Murder committed in a state of passion” contains 2 parts. Part 1 is a crime of minor severity, 2nd is of moderate severity.
So there is no question of any 15 years in prison. The Criminal Code punishes affective murder quite leniently. But there is a difficulty in proving that there really was affect. Without this circumstance, Article 105 “Murder” “shines”. And now this is already very bad.
It is important to know: our criminal lawyers carefully examine each case before developing defense tactics. We do not have templates, because each situation is individual. A person’s fate can depend on a little thing, and one of our tasks is to take all these little things into account.
What is affect and how is it proven?
The Criminal Code states that passion is “a state of sudden strong emotional excitement” (Part 1 of Article 107 of the Criminal Code of the Russian Federation “Murder committed in a state of passion”). But this doesn't explain anything.
In the legal literature they write that passion is a sudden emotional outburst. Because of it, a person loses self-control, the ability to evaluate his actions and predict their results. Affect does not just arise on its own. This is a person’s reaction that he cannot control to the actions or inactions of the victim. That is, the victim, who was subsequently killed, himself provoked the accused to commit this crime.
The Criminal Code prescribes what specific actions a murdered person can take to drive his killer into a state of passion. This:
- violence, which can be physical (for example, beatings, harm to health) or mental (threat of physical violence, destruction of property);
- bullying. There is no agreement in the legal literature on what constitutes bullying. But we can say that this is an evil mockery, an insult or an offensive act;
- grave insult, that is, humiliation of honor and dignity, expressed in indecent form;
- other illegal act. For example, demonstrative arbitrariness, road accidents, extortion, blackmail... That is, everything that is not physical or psychological violence, but is a crime or offense;
- immoral act or omission. That is, something that goes beyond the bounds of decency in society;
- A long-term psychotraumatic situation, which is caused by the systematic illegal or immoral behavior of the victim, is a situation when the victim “irritates” the accused for a long time and keeps him in a state of tension. For example, a stepfather sexually harasses his stepdaughter for a long time, which keeps her in constant anxiety and fear, and then she kills her stepfather in a fit of rage.
It is important to know: due to the fact that many concepts are vague and there is no precise definition, difficulties may arise. For example, the investigator may refuse to recognize psychological violence as violence; may state that only physical violence “counts.” That's why you need an experienced criminal lawyer. And the situation is very “slippery”, if the fact of passion is not proven, then Article 107 of the Criminal Code of the Russian Federation “Murder committed in a state of passion” can be changed to “Murder”.
Judicial practice under Article 107 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 08/09/2018 N 26-APU18-1sp
Gurazhev B.T. convicted under Part 1 of Art. 107 of the Criminal Code of the Russian Federation to 2 years 11 months of restriction of freedom. The time of detention of B.T. Gurazhev was counted. in custody from December 5, 2015 to April 6, 2022 and October 10, 2017 to May 31, 2022 during the term of serving the sentence at the rate of one day in custody for two days of restriction of freedom and was released from the imposed punishment due to its actual departure;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 19, 2018 N 23-APU18-5
In the appeal and additions, the convicted Malsagov I.R., expressing disagreement with the verdict, considers it illegal and unfounded, decided in violation of the criminal procedure law. He believes that the verdict is based on his initial testimony given during the preliminary investigation as a result of illegal methods, and there is no other evidence of his guilt. He claims that he had no intention of taking possession of the victim’s car, U. insisted on entering into a close relationship with her, and after having sexual intercourse with her, she began to threaten that she would report rape to the police, from which he lost control of himself and strangled U. In his opinion, the court ignored his arguments about the circumstances of the crime and did not give them a proper assessment. He also indicates a violation of his right to defense, since he was not familiarized with the minutes of the court hearing and was not provided with a copy of it, which prevented him from writing additions to the complaint. He asks to cancel the verdict and send the case for a new trial or to reclassify his actions from paragraph “h” of Part 2 of Art. 105 and paragraphs “b”, “c”, part 4 of Art. 162 of the Criminal Code of the Russian Federation at Art. 107 of the Criminal Code of the Russian Federation, imposing punishment on him in accordance with the sanction of this article.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 25, 2018 N 49-APU18-12
In additions, Sharipov L. draws attention to the fact that there was no intent to kill the victim. They did not agree on this with their brother, and only intended to take the proceeds from some kiosk under the threat of an ax. Moreover, the murder of the taxi driver was committed during the conflict as a result of the insults expressed, from which he was in a state of passion, as a result of which in this part his actions are subject to qualification under Art. 107 of the Criminal Code of the Russian Federation.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/05/2019 N 5-O19-1
In the cassation appeal, lawyer Efimenkov Yu.A. indicates an incorrect legal assessment of what Magomedov committed, raises the question of reclassification of actions from paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on Part 1 of Art. 107 of the Criminal Code of the Russian Federation, motivating the fact that the convicted person was in a state of passion caused by an indecent proposal from the victim. He also points out the excessive severity of the punishment, believing that it was imposed without taking into account all the information about Magomedov’s personality.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 25, 2019 N 74-APU19-4sp
Convicted under paragraph “c” of Part 2 of Art. 115 of the Criminal Code of the Russian Federation to restriction of freedom for a period of 1 year and in accordance with Part 8 of Art. 302 and paragraph 3, part 1, art. 24 of the Code of Criminal Procedure of the Russian Federation was exempted from serving a sentence due to the expiration of the statute of limitations for criminal prosecution, under paragraph “c” of Part 2 of Art. 115 of the Criminal Code of the Russian Federation to restriction of freedom for a period of 1 year and in accordance with Part 8 of Art. 302 and paragraph 3, part 1, art. 24 of the Code of Criminal Procedure of the Russian Federation was exempted from serving a sentence due to the expiration of the statute of limitations for criminal prosecution, under Part 1 of Art. 139 of the Criminal Code of the Russian Federation to a fine of 10,000 rubles and in accordance with Part 8 of Art. 302 and paragraph 3, part 1, art. 24 of the Code of Criminal Procedure of the Russian Federation was exempted from the imposed punishment due to the expiration of the statute of limitations for criminal prosecution, under Part 2 of Art. 107 of the Criminal Code of the Russian Federation to imprisonment for a term of 2 years in a colony settlement, released from serving the sentence upon expiration of the term, taking into account the time he was in custody.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06.08.2019 N 48-APU19-22
lawyer Goroshko E.O. in defense of convicted Gruzina A.A. asks the court verdict to change the actions of A.A. Gruzina. reclassify from paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on Part 1 of Art. 107 of the Criminal Code of the Russian Federation. In support of the arguments of the complaint, he points out that the factual circumstances of the case were established incorrectly by the court;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 20, 2019 N 32-APU19-6
Referring to the examined evidence, he points out that the situation at the scene of the incident, Platonov’s emotional state after the victims inflicted bodily harm and insults on him, his state of health, the presence of a mental disorder and age, indicate that Platonov was in a state of strong mental agitation and his actions were subject to qualification only according to Part 2 Art. 107 of the Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 17, 2019 N 59-APU19-8
In the appeal and additions, the convicted Kot V.V. asks to change the sentence, reclassify his actions under Part 2 of Art. 107 of the Criminal Code of the Russian Federation, which provides for liability for the murder of two persons committed in a state of passion, and mitigate the punishment, arguing that by their illegal behavior, expressed in insulting him, the victims caused him strong emotional disturbance. The court considers the court's conclusions that he was not in a state of passion unfounded, and considers the expert opinion on this issue to be unreliable and obtained in violation of the norms of criminal procedure law. He was unreasonably denied the appointment of a repeated psychological and psychiatric examination in the case. In addition, he believes that the court unreasonably recognized the fact that he was intoxicated as an aggravating circumstance. At the same time, it indicates that a medical examination was not carried out in relation to him, and the testimony of witnesses that he drank alcohol before committing the crime is not enough to conclude that this aggravating circumstance exists in the case, since the witnesses could not say how drunk he was, he himself believes that he drank little and was essentially sober. In the addition dated July 22, 2022, he claims that the judge imposed an excessively harsh punishment on him only because before the debate of the parties he insulted him and the prosecutor with obscene words, and asks to cancel the sentence, and in the addition dated August 12, 2022, the convict challenges a negative characterization given to him by the district detective, and indicates that he presented to the court positive characteristics from his place of residence and work.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 12, 2019 No. 18-APU19-17
- lawyer Suchenko P.Ya. in the interests of the convicted person, Danilov asks to change the sentence and reclassify Danilov’s actions to Part 2 of Art. 107 of the Criminal Code of the Russian Federation, which provides for liability for the murder of more than two persons, committed in a state of passion caused by a long-term psychologically traumatic situation that arose in connection with the systematic immoral behavior of the victims;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 10.10.2019 N 57-APU19-5
There was no data established in the case that would indicate that Antonov was in a state of strong mental agitation, which, within the meaning of Art. 107 of the Criminal Code of the Russian Federation must be due to nothing other than the illegal or immoral behavior of the victims, or one of them. Thus, taking into account the conclusion of a commission of experts who, during the course of research, did not establish mental and psychological deviations in the convict’s state, as well as based on an analysis of the actions he committed to prepare for a crime and implement criminal intent, which were consistent and purposeful, his behavior during the period , which followed the event of the crimes and directly at the trial, the court had no compelling reasons to doubt his sanity.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 12, 2019 N 31-APU19-8
Referring to the conclusion of a forensic psychiatric examination regarding Nikitin E.S., which established the presence of a mental disorder in the form of an emotionally unstable personality disorder of the impulsive type, he considers it correct to qualify the actions of Nikitin E.S. upon causing the death of S. under Part 1 of Art. 107 of the Criminal Code of the Russian Federation, claiming that S. insulted Nikitin and his parents during the conflict, which greatly angered the convict and he did not understand what he was doing. Please note that the incriminated acts Nikitin E.S. committed when he was a minor, wrote a confession. He asks that the sentence be overturned and that the criminal case be sent for a new trial.
How to prove that there was an affect
You should apply for the appointment of a forensic psychological examination of affect. But there is one point: the court is not obliged to admit that the murder was committed in a state of passion, even if the examination directly says so. Therefore, criminal lawyers often bring in witnesses who testify in favor of the defendant.
It is necessary that the witnesses give evidence that would convince the court that there was a state of passion at the time of the murder. For example:
- that the defendant became disoriented in time after the murder. For example, the police arrived in 15 minutes, but he claims that she drove for 3 hours;
- after committing the murder he behaved inappropriately, was very pale, and muttered something incoherently;
- fell into complete apathy, did not react to what was happening;
- just fell asleep. Yes, this happens, and not rarely. Affect gives such an emotional explosion that a person exhausts all his strength in a few minutes and immediately falls asleep. There are cases when, after a murder, in a state of passion, a person went to bed next to the body that had not yet cooled down. It was in this form that the police found him when they arrived.
It is important to know: proving that there was affect is a serious task. A criminal lawyer needs to collect, analyze and advantageously present information on how the defendant behaved before, during and after committing a crime under Article 107 of the Criminal Code of the Russian Federation “Murder committed in a state of passion.” If this is not done, the investigator may classify the crime as murder.
Comments to Art. 107 CC
Comments on the law do not have legal force, but depending on the authority of the source of the comment, they can more or less significantly influence law enforcement.
As a rule, publishing houses specializing in the printing of legal literature publish commentaries by legal scholars with an academic degree of at least a Doctor of Science, preferably: teams of authors, desirable positions:
- Teachers and heads of departments of legal disciplines in leading universities.
- Judges and consultants of the superior courts.
- Recognized practicing lawyers with a large number of scientific works and publications in journals.
As a rule, comments to each norm of the Criminal Code do not exceed one page in length and contain clear, practical explanations about the situations covered by this norm.
To write a commentary, scientists analyze the norm and analyze its differences from similar compounds. Since the symptom mentioned is a psychiatric concept, it is described as a short-term narrowing of consciousness with a weakening of control over actions.
This differs from the self-defense used, when the accused could control himself, but could also overestimate the danger from the victim, which will be discussed below.
Why do you need a lawyer?
If you do not know the intricacies of the criminal process, then you risk becoming easy prey for the investigator. Why does he need this? For good statistics, to show his superiors what a professional worker he is and that he deserves a bonus.
The most important and necessary thing in Article 107 of the Criminal Code of the Russian Federation “Murder committed in a state of passion” is to prove that there was passion. Without this “good luck”, the case can be classified under Article 105 “Murder”, and there is a sentence of up to 15 years only for the first part. This is why you need an experienced criminal lawyer - to prove the state of passion.
But that's not all. In addition to proving passion, a lawyer solves a lot of other important problems:
- ensures that you do not violate your rights during interrogations, confrontations, presentations for identification, searches;
- seeks the cancellation or mitigation of the preventive measure;
- looks for witnesses who will testify in court in your favor;
- ensures that the examination is carried out according to the law, and that the expert is truly independent;
- demands in court to exclude from the case evidence that the investigator collected with violations;
- collects other evidence in your favor.
Position of the RF Armed Forces under Art. 107 of the Criminal Code of the Russian Federation
The Supreme Court (SC), as a supervisory judicial body, regularly summarizes judicial practice in criminal cases.
The Plenum of the Supreme Court in Resolution No. 19 of 2012 provides clarification on how actions should be qualified in complex incidents, for example, when the reaction was caused by an attack, and causing death could occur both as a result of a change in consciousness, and as a result of actions that were not required for the necessary defense
This resolution concerns such types of crimes as:
- With the necessary defense and its excess.
- The same applies when a person is detained.
- Taking into account the affect.
The first two components are stated in the title of the resolution of the Plenum, but in fact it also contains explanations about murder when a person had difficulty controlling himself.
If, after an attempt by the accused, who is in a fit, to kill the victim, the latter survives, this act is considered unfinished and is qualified as an attempt. Injuries in this case may coincide with the objective side of another composition, namely the 113th Criminal Code.
Since proving intent in an already unusual crime is quite difficult, it is easier for the investigation to charge 113 than attempted murder taking into account mental instability, or, as it is called in professional legal jargon, “107 through 30.”
