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 - is punishable by correctional labor for a term of up to two years, or restriction of freedom for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same term.
2. The murder of two or more persons, committed in a state of passion, is punishable by forced labor for up to five years or imprisonment for the same term.
Definition of the term
A state of passion is an extremely strong emotional disorder that lasts only a few minutes. In this state, a person’s consciousness and ability to think are suppressed, and the ability to control one’s actions disappears.
Reference! In jurisprudence, affect is described as a sudden emotional outburst. That is, this is a destructive mental state in which a person loses the ability to realize the danger of his actions and is unable to control them.
Part 1 of Article 107 of the Criminal Code of the Russian Federation defines affect as a state of “suddenly arising strong emotional excitement.” In this case, strong emotional arousal manifests itself in sudden, erratic movements, incoherent speech, and shouting. Affect itself is the peak of experience, its critical point. Affective states are characterized as states with partial loss of legal capacity.
Causes
Affect cannot arise just like that, without cause. This is a reaction that cannot be controlled, and it manifests itself in response to someone’s actions, and sometimes inaction. The disposition of Article 107 of the Criminal Code of the Russian Federation specifies the actions of the victim, which could bring the criminal to a state of passion:
- violence (physical, psychological);
- bullying (insults, rude ridicule);
- grave insult (humiliation of honor and dignity expressed by profanity);
- other illegal actions (arbitrariness, blackmail, extortion);
- immoral action or inaction (something that goes beyond the boundaries of permissibility in normal society);
- a long-term psychotraumatic situation caused by the regular illegal or immoral behavior of the victim.
In order for a crime to be classified as privileged (murder with mitigating circumstances) with the possibility of applying Art. 107 of the Criminal Code of the Russian Federation, the following requirements are imposed on the actions of the victim:
- The criminal’s state of passion arose precisely as a result of the victim’s act, and not due to any extraneous circumstances.
- The actions (inactions) of the victim must necessarily be criminal or immoral in nature.
In actions, this can be physical, sexual violence, psychological impact, moral torture, etc. Or criminal failure to provide assistance, if we are talking about the inaction of the victim. The requirement of malicious intent in the actions of the victim is not provided for by law. They can be committed through negligence. - Murder must be committed exclusively against a person whose actions brought the offender into a state of passion. If the victims are persons not involved in this, then their murder will be considered under Art. 105 of the Criminal Code of the Russian Federation, and a state of passion may reduce the degree of punishment.
Reference! In some cases, taking into account exceptional circumstances or against the background of a long-term psychologically traumatic situation, there may be some break in time.
Definition of state of affect
The characteristics of the behavior of an affected person are determined by a forensic psychiatric examination, whose specialists give a diagnosis. If, at the moment of depriving a person of life, the accused exhibited manifestations of incoherent speech, changes in the perception of shapes and colors, disturbances of consciousness, disorientation in time, then experts will confirm the lack of control of the criminal over himself. Another symptom that indicates an overload of the nervous system is a lack of emotions and apathy after the crime has occurred.
Often the results of a forensic psychiatric examination raise doubts among judges, since the facts presented are inconclusive. To avoid an incorrect decision by the judges, it is allowed to submit a request for an examination again. If a criminal has a pathological affect, he falls under the concept of an “insane person”, and therefore is not subject to jurisdiction. One of the features of the state of passion is its danger not only for the person experiencing it, but also for the one who, voluntarily or unwittingly, became the cause of the change caused, since the victim could ignore the norms of legal behavior during contact with the offender.
Corpus delicti
- object of the crime: the life of another person;
- the objective side of the crime: the actions of the criminal in a state of passion, aimed at causing the death of the victim;
- subject: general, i.e. a sane individual who has reached the age of 16 at the time of committing the crime;
- subjective side: guilt in the form of intent (direct or indirect) in the emotional state of the person at the time of the murder.
Examples of crimes
- Kuibyshevsky District Court of Samara convicted under Art. 107 of the Criminal Code of the Russian Federation, citizen Belov, who committed murder against citizen Pynzar. On March 20, 2016, Pynzar, while driving a vehicle, violated traffic rules, as a result of which he hit the accused’s young son.
The child died from his injuries. Being in a state of emotional excitement, the accused tried to avenge his son, but Pynzar fled the scene. 06/18/2016 Belov accidentally meets Pynzar on the street, the tragic events of the past, the death of his son, instantly emerge in the memory of the accused.Against the background of Pynzar’s defiant behavior, cynically declaring that he will continue to enjoy freedom, the accused, subjected to a state of sudden strong emotional disturbance, kills the culprit in the death of his son. This murder, due to the current circumstances, must be qualified in accordance with Art. 107 of the Criminal Code of the Russian Federation, since the resulting state of passion has a cause-and-effect relationship with the illegal actions of the victim.
- By the verdict of the Stavropol Regional Court dated March 31, 2015, he was convicted under Part 1 of Art. 105 of the Criminal Code of the Russian Federation, citizen Sokolov and was sentenced to eight years in prison to be served in a general regime correctional colony. In the complaint of the supervisory authority, the convict asked to change the sentence, reclassifying the murder committed in accordance with Art. 107 of the Criminal Code of the Russian Federation, considering that the court did not take into account the unlawful behavior of the victim as a mitigating circumstance.
Having analyzed the case materials based on the convict’s complaint, the court found the verdict and the cassation ruling subject to change. From the testimony of the defendant Sokolov and the materials of the preliminary investigation, it follows that he, together with his partner and brother K., was in his apartment.The brother went out to smoke in the entrance, ten minutes later his partner, looking out into the entrance, reported that his brother was quarreling with two young men. He looked out into the entrance, but not finding his brother and these people, he returned to the apartment, taking a kitchen knife with him so that he could use it in case of a fight, and went out into the street.
Coming out of the entrance, he saw that his brother was lying on the ground and covering his face with his hands; several people were standing around him, one of whom was kicking K. Sokolov tried to pull the kicking V. away from his brother, but he hit him in the face, after which Sokolov took out a knife and struck one blow to V.’s neck. After that, everyone present fled the scene. Then Sokolov dragged his brother into the apartment.
At the court hearing, Sokolov asked to take into account the fact that he was defending his brother. Taking into account the circumstances of the attack, namely the fact that together with the attacker K. there were several other people who watched him beat K and did not try to intervene.
The court concludes that Sokolov had grounds for using the necessary defense in order to protect his life and legal interests, as well as to protect himself from aggressive actions towards his brother, but the method and means of defense that the accused used were not consistent with the nature of the attack .
In these circumstances, Sokolov exceeded the limits of necessary defense by using a knife against an unarmed victim, which obviously did not correspond to the nature and degree of public danger of the attack. Sokolov’s actions should be qualified under Part 1 of Art. 108 of the Criminal Code of the Russian Federation, as murder committed when the limits of necessary defense were exceeded.
Important! Qualify the crime under Art. 107 of the Criminal Code of the Russian Federation would be unfounded, since Sokolov returned for the crime weapon before he saw the scene of his brother being beaten, which could have caused a state of passion.
Punishment for murder in SA
Based on the moral pressure received, the criminal who committed the murder, under Art. 107, depending on the severity, may be punished as follows:
- correctional labor for a period of up to 2 years;
- restriction of freedom up to 3 years;
- forced labor for up to 3 or 5 years;
- imprisonment up to 3 or 5 years.
This measure is considered more loyal than when committing an ordinary murder, when the punishment is set in the form of imprisonment for 15 years.
Problems of distinguishing from similar crimes committed
How to distinguish from an act in excess of necessary defense?
Crimes committed in a state of strong emotional disturbance are characterized by causing harm to the victim in response to his unlawful actions , not for the purpose of defense and, accordingly, not in a state of necessary defense.
Thus, when resolving the dispute about delimiting the elements of these crimes, it is necessary to take into account that a person being in a state of passion does not exclude the possibility of being in a state of necessary defense. Judicial practice has relevant examples.
So, on April 2, 2015, citizen Abaev, with his minor sister, came to visit the Churikovs (their sister and her husband). Churikov was drunk, continued to drink and invited Abaev to join. Abaev did not want to drink and, paying attention to the bruises on his sister’s face and neck, began to find out the reason for their appearance.
Churikova’s husband did not deny the fact of beating his wife and began to obscenely insult her. The fact of assault was present earlier, which caused Abaev’s indignation, since in his opinion, his sister behaved with dignity and did not deserve such treatment.
Churikov was characterized negatively; he had a previous conviction, drank, and caused scandals in the family. When the conversation turned to Abaev’s sister, Churikov pointedly hit her in the face. Abaev tried to stop Churikov, but he began to grin at him, declaring that Abaev, apparently, was cohabiting with his sister, and therefore stood up for her. Then he grabbed Abaev by the jacket, threw him to the floor, and began to beat his head on the floor.
Churikova and her younger sister pulled Churikov away from her brother. Then Churikov attacked Abaev with a kitchen knife. The accused managed to snatch the knife from Churikov’s hands and inflict numerous blows on him in the chest area, one of which hit the heart. Churikov died from his injuries.
The court found that Abaev was defending himself against Churikov’s actions, which were accompanied by violence that was dangerous to Abaev’s life. Churikov committed the attack while drunk, using a bladed weapon, and showed aggression.
According to the examination, Abaev was in a state of passion and could not objectively assess the situation. As follows from the case materials, the end of the attack in these circumstances was not clear to Abaev.
In this case, the court decided to acquit Abaev, which is completely justified.
When considering the factors for delimiting the elements of these crimes, it is necessary to take into account the fact that the main parameter for delimiting is the presence of a motive. If in the case of passion the main desire of the person committing murder is the desire to deal with his enemy, then in the case of necessary defense the main motive is an attempt to protect his life or the life of loved ones.
Attention! If it is necessary to distinguish between crimes, a comprehensive forensic psychological and psychiatric examination is required.
How to differentiate an act with aggravating (qualifying) features?
In judicial practice, there are cases that have both mitigating circumstances (in the form of a state of sudden strong emotional disturbance) and aggravating ones, which make it possible to qualify the crime committed under Part 2 of Article 105 of the Criminal Code of the Russian Federation.
It is significant that the criminal code mitigates liability for a crime committed in a state of strong emotional distress, not only because the person who committed the crime was in a state of clouded consciousness, but also because a murder of this kind is a response to the unlawful or immoral actions of the victim.
When such a crime is committed, the intent to cause death arises immediately, in response to the provocative behavior of the victim. The cause of murder is the actions of the victim. Accordingly, if there are also qualifying signs in the case, such a murder should be considered under Art. 107 of the Criminal Code of the Russian Federation.
In each case, it is necessary to establish what actions covered the intent of the accused. If there are signs that the murder was committed with particular cruelty, for qualification under Art. 103 of the Criminal Code of the Russian Federation, it is necessary that the accused be aware that it is by such actions that he causes special suffering to the victim, and wants to cause this suffering.
The murder of a person who is known to the accused to be in a helpless state, for qualification under Part 2 of Art. 103 of the Criminal Code of the Russian Federation, must also contain the intent of the perpetrator. If such conditions occurred, this eliminates the possibility of a state of passion, which, in turn, leads to the absence of a conflict of mitigating and aggravating circumstances.
Important! The presence of numerous wounds on the victim’s body often indicates the presence of a state of passion, rather than the intent to kill with particular cruelty (of course, if there are other confirming circumstances).
The reader may be interested in the following articles:
- Responsibility for the murder of a newborn child by a mother.
- The line between self-defense and crime.
