Crimes that entail serious harm to the health of the injured person can be committed intentionally or through negligence. These are two completely different situations that are clearly separated by law. But there is also such an option as causing harm to health in a state of passion.
In this case, the crime is considered premeditated, but is considered taking into account the condition of the accused at the time of the violation of the law.
For cases where slight harm was caused to health, there is a slight deviation in Art. 115 of the Criminal Code. This circumstance is mitigating. For cases where the harm was serious - such that it can be classified as severe - the case is considered under a separate article.
What is a state of affect?
The state of passion that provoked the crime, depending on its type, may be a mitigating factor for the court, or may even exempt from liability. However, for any of these options for the outcome of the case, it is necessary to prove that the person was not fully aware of his actions.
In criminal law, this condition is called behavior provoked by a short-term change in consciousness to such an extent that actions prevail over their volitional control .
This can be a flash of despair, anger, rage or fear, or any strong emotional arousal that prompts a person to commit actions that are unusual for him. A short-term state of passion manifests itself violently and suddenly.
REFERENCE. There are two types of affect. Pathological implies an impulsive action, completely uncontrollable, caused by a complete eclipse of consciousness. At such a moment, a person is in a state that psychiatrists characterize as insane.
Physiological affect leaves a person in a “partial” consciousness, when thinking is slowed down and emotions prevail over reason. This type is short-lived. Awareness of one’s actions weakens, but does not go away completely. Responsibility is provided for cases of physiological affect, and in case of pathological affect it is removed.
Signs of its presence
Signs of a state of affect can be considered:
- excessively increased emotional arousal, which is not typical for this person in ordinary life;
- strong motor activity;
- a sharp change in facial expressions and speech;
- often accompanied by a manifestation of increased brute strength, which has also never been observed in this person.
All of the listed signs are affect if they appeared suddenly and were very short-lived - a few seconds. After this, loss of consciousness is possible (but not required). In the case of pathological affect, the person still does not remember what happened. Subsequently, your health or well-being may deteriorate significantly.
Composition of crimes involving grievous bodily harm
In the legislation of the Russian Federation, causing severe harm to health in a state of passion is combined with harm of moderate severity into one article. In order for a person to be charged with such a charge, the crime must include:
- facts confirming that the offender was in a state of passion at the time of committing the illegal act.
- A conclusion certified by doctors indicating that the plaintiff had serious health consequences due to an attack by the defendant.
- The relationship between the victim’s behavior and the onset of a state of passion in the accused must be clearly visible. The legislation characterizes such behavior as “illegal or immoral.”
Restrictions from other compounds
Such cases are considered in a special manner due to the presence of a mitigating circumstance . The legislation draws an analogy with Art. 107 of the Criminal Code. Within its framework, attacks on human life are considered.
In this case, the difference is that there is an attack on health, but with serious consequences if damage is caused to a high degree of severity.
Also, a crime of this nature is delimited from Art. 111, which considers causing grievous bodily harm intentionally. An attack in a state of passion will also be considered intentional, but a special circumstance partially changes the course of the case in favor of the accused. Although he will still suffer punishment, unless the affect is recognized as pathological.
Article 113. Causing grievous or moderate harm to health in a state of passion
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 27, 2018 N 11-UD18-22 In the cassation appeal, the convicted Khasyanova L.N. expresses disagreement with the verdict passed against her and with subsequent court decisions, considers them unfair due to the excessive severity of the imposed punishment. Believes that the court did not take into account the specific circumstances of the crime. She claims that she had no intent to cause the death of the victim, she stabbed her with a knife while in a psycho-emotional state caused by his illegal and immoral behavior, but the court unreasonably did not recognize this circumstance as a mitigating one in accordance with paragraph “h” of Part 1 of Art. of the Criminal Code of the Russian Federation, while the court’s conclusions are unmotivated. She also believes that the court unreasonably did not take into account positive data about her personality, lack of criminal record and did not apply the provisions of Art. Art. , the Criminal Code of the Russian Federation, since at the time of the crime she had a dependent minor child. The higher courts did not take these circumstances into account. Taking into account the above, she asks to change the verdict and subsequent court decisions, to reclassify her actions under Art. 113 of the Criminal Code of the Russian Federation or paragraph “z” of Part 2 of Art. 111 of the Criminal Code of the Russian Federation and impose punishment using Art. Art. , Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 30, 2018 N 9-APU17-25
the convicted Lukanin disputes the validity of the conviction and claims that R. incriminated himself in the murder under pressure from law enforcement officers. His actions towards S. in connection with the immoral behavior of the victim should be qualified under Art. 113 of the Criminal Code of the Russian Federation. The court's conclusions are based on assumptions and inadmissible evidence, R. killed S. Considers the sentence excessively strict;
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 26, 2017 N 9-N17-1
according to Part 2 of Art. 113 of the Criminal Code of the RSFSR (as amended in 1922) with punishment under Part 2 of Art. 106 of the Criminal Code of the RSFSR to 5 years in prison; according to Part 2 of Art. 114 of the Criminal Code of the RSFSR (as amended in 1922) to 3 years of imprisonment with strict isolation;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 19, 2017 N 51-APU17-16
- August 15, 1994 by the Altai Regional Court (taking into account changes made by the decisions of the Rubtsovsky City Court of the Altai Territory dated March 12, 2001 and December 16, 2004) under Art. and pp. “a”, “e” art. 102 of the Criminal Code of the RSFSR, paragraphs “a”, “d”, art. 102 of the Criminal Code of the RSFSR, art. 113 Criminal Code of the RSFSR, Part 2, Art. 159 of the Criminal Code of the Russian Federation (as amended by the Federal Law of 2003), part 3 of Art. 148 of the Criminal Code of the RSFSR, in accordance with Part 1 of Art. Criminal Code of the RSFSR to 14 years 6 months in prison, with the first five years to be served in prison. Released on January 25, 2008 after serving his sentence;
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 10, 2020 in case No. 73-UDP20-8SP-A5
- June 13, 2002 by the Oktyabrsky District Court of Ulan-Ude under Art. 113 of the Criminal Code of the Russian Federation to 2 years in prison, on the basis of Art. of the Criminal Code of the Russian Federation for the totality of sentences by adding with the unserved part of the sentence under the sentence of November 18, 1998 - to 6 years in prison; by decision of the Oktyabrsky District Court of Ulan-Ude dated June 6, 2006, he was released on parole for an unserved sentence of 1 year 6 months 6 days;
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 20, 2020 in case No. 80-UD20-4-A4
Kulagin S.V. cohabited with P., the ex-wife of the victim P., who abused alcohol, did not pay child support, and prevented the exchange of living space. It is to solve these problems that Kulagin S.V. decided to talk to the victim. He took Kulagin's brother Vadim with him solely for moral support. However, upon meeting P., he immediately began to insult him, which, together with the victim’s bullying of his ex-wife (the beloved woman of Kulagin S.V.), caused the latter to experience a state of physiological affect, and he, not fully aware of his actions, inflicted multiple blows on the victim . In this regard, the actions of Kulagin S.V. subject to qualification under Art. 113 of the Criminal Code of the Russian Federation as causing grievous harm to health in a state of passion. The court did not adequately establish the psychological state of S.V. Kulagin. for the period of this conflict. The expert psychologist was not questioned by the court. In the case, the defense's requests to appoint S.V. Kulagin were unreasonably rejected. inpatient psychological and psychiatric examination, despite the presence of information about the presence of mental disorders in close relatives of Kulagin S.V. - his father, brother and daughter. According to lawyer A.D. Moroz, the brother of the deceased (P.) was illegally, without taking into account the order established by law, recognized as the victim, although the victim was P., the daughter of the deceased;
Laws regulating liability for this act
Infliction of grievous bodily harm committed in a state of passion is regulated by Art. 113 of the Criminal Code of the Russian Federation. A mandatory condition in it is that in the situation before the court there must be a deliberate or accidental provocation on the part of the victim . It can be either one-time or ongoing over a period of time.
Mitigation of liability in comparison with a similar action without passion is also provided for in Art. 61 of the Criminal Code, paragraph 1. It states that if the victim gave rise to such an act on the part of the accused with his “immoral or illegal behavior,” then this reduces the guilt and responsibility of the criminal .
In the article itself 113 is about.
Article 113. Causing grievous or moderate harm to health in a state of passion
Intentional infliction of grievous or moderate harm to health, 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, as well as a long-term psychotraumatic situation that arose in connection with systematic illegal or immoral behavior of the victim, is punishable by correctional labor for a term of up to two years, or restriction of freedom for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same term.
In addition to physiological and pathological, affect is also divided into ordinary and cumulative.
- The first is caused by a single reason.
- The second implies a number of such reasons, extended over time and, perhaps, quite insignificant.
Cumulative affect can be called the result of the “last straw” when the accused runs out of patience. Both cases are considered by the court under Art. 113.
IMPORTANT. In Art. 113, art. 61 and when considering the case as a whole, the fact that the state of passion must be caused precisely by the behavior of the victim is especially highlighted. Extraneous reasons not relevant to the situation are not taken into account.
Suppose, if the victim was “harassed” at work for a long time, and he snapped at a passerby, then under Art. 113, the case will no longer be considered, just as there will be no mitigating circumstance under Art. 61.
Another commentary on Article 113 of the Criminal Code of the Russian Federation
1. The disposition of the article is of a referential nature, since we are talking about the infliction of previously studied types of harm to health, which are covered by Art. Art. 111 and 112 of the Criminal Code. But the objective side contains an important mandatory feature - a situation that is characterized by negative, illegal or immoral behavior of the victim.
2. The subjective side also includes another mandatory feature - the special emotional state of the perpetrator. It acts in a state of physiological affect, i.e. sudden strong emotional disturbance. The signs of such a condition have been carefully analyzed in relation to Art. 107 of the Criminal Code, and there is no need to repeat them.
3. It is important to take into account that this provision contains a privileged corpus delicti, which provides for mitigating circumstances. Firstly, this concerns the age of criminal responsibility, which is possible when a person reaches the age of 16 years. Secondly, a special role is given to the figure of the victim. His behavior is regarded as a provoking factor, so the intent of the perpetrator can be direct or indirect, but only suddenly arisen. The latter circumstance gives the right to speak about the impossibility of classifying the actions of the perpetrator as an attempt to cause harm to health of this severity.
What to do if you are injured?
The plaintiff in such a situation needs to attest to the bodily injuries in the direction from the place of filing the claim. You also need to attach the medical examination report to the case file, and attach any witness statements there.
You need to understand: if the state of passion was really caused by provocation coming from the plaintiff, then the punishment will be mitigated. It will not exceed two years of imprisonment, and it may be that the person who committed the crime will not receive a prison sentence.
It may be more difficult for the defendant. Although this aspect may mitigate the penalty, such cases can often be difficult for the accused. There are several barriers identified as important legislative conditions.
Difficulties that a defendant may encounter when trying to mitigate guilt:
- Evidence of the very fact of the presence of passion at the time of the commission of the crime. It is necessary that it be recognized by the commission.
According to statistics, such tests often lack objectivity, and the percentage of correctly identifying the state of affect or its absence is very low. In only one quarter of cases the examination is correct the first time. - Evidence of provocation on the part of the victim. This often causes difficulties, especially if there were no witnesses. Not every victim, especially if he received serious bodily injuries, admits his unlawful behavior.
- The requirement is “the reality of the occasion, and not the subjective perception of the situation by the criminal.” The condition is completely justified, but also complicates the course of the case for the defendant. What one person considers a serious provocation, another may not even notice.
REFERENCE. If the accused believes that the examination was carried out incorrectly or gave incorrect results, it is worth taking it again and/or collecting as many facts as possible that speak in favor of the fact that there was a state of passion.
For example, this could be witness testimony. As practice shows, in half of the cases (about 62%) the results of the examination are recognized as incorrect during the consideration of the case. In 1 out of 10 cases they are challenged during a review of the case by a higher authority.
