Criminal law provides for liability not only of the person who committed the crime, but often also of the person who deliberately persuaded him to make this decision. And in the case when we are talking about such a serious act as murder, the responsibility of the instigator can also be quite great. Let's figure out what the legal role of the instigator is, what exactly constitutes incitement - and what liability the perpetrator faces under Art. 105 using Art. 33 of the Criminal Code of the Russian Federation.
What is incitement to murder?
First, you need to determine what kind of action is called incitement from a legal point of view. To do this, you need to refer to the text of Art. 32 and 33 of the Criminal Code of the Russian Federation. According to their norms, it is possible to commit a crime in the form of complicity - when two or more persons who may be subjects of a crime jointly participate in the commission of an intentional crime.
Important! It is important to pay attention to the term “intentional”. It is very problematic to participate in criminal acts committed through negligence, and it is completely impossible to incite them.
More information about the analysis of the concept of causing death by negligence can be found here.
Complicity itself is expressed in the following types, provided for in Art. 33 of the Criminal Code of the Russian Federation:
- Co-perpetration - when the crime itself is directly committed by two or more people.
- Organization - when someone organizes the commission of criminal acts, manages other criminals, and also when he organizes a criminal group or community.
- Complicity - when the accomplice himself is not directly involved in the crime, but helps with advice, provides tools or tools, removes obstacles in the way of the perpetrator, and also promises in advance to give the criminal shelter or to purchase the obtained valuables from him.
- Incitement is when someone induces another person to commit criminal acts through persuasion, bribery, blackmail, threats or other methods.
When talking about incitement to murder, the following should be kept in mind: the instigator himself does not kill - he bribes, persuades or forces the murderer to commit a criminal act. Thus, the actions of the instigator also pose a danger to society - and that is why criminal law provides for liability for him too. Specifically, incitement is described in Part 4 of Art. 33 of the Criminal Code of the Russian Federation.
Types of participants in a criminal act
An organizer is a citizen who directly organizes a criminal act, coordinating the actions of other participants, as well as a person who creates an organized group of persons, or an association of criminal groups for the purpose of committing crimes.
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An accomplice is a citizen who assists in the commission of a criminal act through the following actions:
- giving advice and guidance;
- provision of information, means and tools necessary to commit a future crime;
- removing obstacles that prevent the commission of a criminal act;
- concealment of instruments and means used in the commission of a crime, persons involved in it, as well as stolen property of victims.
The perpetrator is a person who directly committed a criminal act alone or as part of a group of other perpetrators, as well as a citizen who committed a crime through the hands of persons exempted from liability by force of law, for example, by involving minors or incompetent citizens.
And finally , instigators are citizens who incline other persons to commit a criminal act by manipulating people through bribery, persuasion, threats, or using other methods of influencing a person.
In this case, the instigator can act through both soft intrusive persuasion, gradually convincing a person or misleading him, and harsh methods of influence, including physical violence, the threat of violence or blackmail. The instigator’s choice of one method or another largely depends on the personality of his victim, her psychological state and life circumstances. For example, deception is often used by the lawyers “involved” in the case to incite false testimony in order to improve the position of the client.
In some cases, it is quite difficult to distinguish between incitement, complicity and organization, since all these forms of participation in a crime have similar characteristics and pursue the same goal.
However, regardless of the degree of participation in the criminal act, these persons are accomplices of the crime committed.
What methods are there?
In practice, the instigator can carry out his actions in various ways . In first place in terms of prevalence among them is bribery. In this case, the instigator promises the future murderer to pay a certain amount of money or transfer some valuable property if the crime is committed. Criminal liability in this case is distributed as follows:
- The killer will be liable under paragraphs. “g” and “h” part 2 art. 105 of the Criminal Code of the Russian Federation (murder committed by prior conspiracy for mercenary reasons or for hire).
- Instigator – on the same counts, but using Part 4 of Art. 33 of the Criminal Code of the Russian Federation.
Another way would be persuasion. In this case, the criminal does not receive any material benefit from his actions and commits murder for other reasons. The specific form in which persuasion should take place is not established by law.
In addition, the instigator can also act through threats . In this case, the criminal commits the murder of another person at the will of the instigator in order to avoid any negative consequences for himself. Threats may relate to the life of the criminal himself or his loved ones, to his property, health, etc.
The main difference between threats and persuasion is that with persuasion the role of the direct executor is more active. Accordingly, when sentencing a murderer, this difference must be taken into account. Moreover, if the threat was significant enough, the perpetrator may generally avoid punishment in accordance with Art. Art. 39 and 40 of the Criminal Code of the Russian Federation.
According to its norms, an action carried out under duress and in a state of extreme necessity is not considered a crime - and in some circumstances, a threat to the life and health of the person forced to commit murder, or his loved ones, may be considered as an extreme necessity.
Attention! The law establishes an open list of ways in which incitement can be expressed.
This is due to the fact that when a clearly defined list is established, those persons who incite the commission of a crime (in particular, murder) in ways that are not directly named in the law will escape responsibility. Since criminals often have a rich imagination, this situation is almost inevitable.
Punishment for the organizer
The organizer of a crime is a person who is active in everything related to preparation for committing an offense.
Such an event participant can have two roles:
- direct participant;
- The role of only the organizer.
With direct participation, the criminal carries out the organization primarily on his own, develops a plan for the proposed act, determines the role of each participant, if there are several of them, and also determines his role in participation. If the organizer only intends to develop a plan, then he does not participate in the process itself, but at the same time manages the process completely, communicating with other participants in ways available to him.
The punishment of this accomplice will be determined in accordance with the obligations assumed, since offenses may vary in severity, but the terms of the name are subject to change.
Also, when assigning a measure of responsibility, the identity of other people who are part of the company that committed the offense is taken into account:
- Minors.
- Incapacitated.
- Mentally ill, but not incapacitated.
In this case, the organizer, even if he did not participate in the crime, is recognized as the direct perpetrator, since he influenced other accomplices thanks to his strength, both physical and intellectual, and also suppressed the weaker ones and essentially forced or incited them to act as he pleased.
Main differences from other forms of complicity
Incitement correlates with other forms of complicity provided for in Art. 33 of the Criminal Code of the Russian Federation , as follows:
- Unlike co-perpetrator, the instigator does not directly participate in the commission of the crime.
- Unlike organization, the instigator only encourages the criminal perpetrator to commit his act, but does not organize the process of criminal actions. He does not plan the commission of a crime, does not distribute roles between other accomplices, but only persuades the perpetrator to act.
- Unlike aiding and abetting, the instigator does not provide any assistance to the perpetrator - he acts independently.
In addition, the instigator participates in the execution of the objective side of the crime, while the accomplice does not. The main difference between these two forms of complicity is the following: the instigator arouses the desire in the perpetrator to commit a crime, and the accomplice helps to realize this desire. In the case of intellectual complicity (when an accomplice gives the perpetrator specific recommendations and advice on how exactly to commit a crime), the difference from incitement will be whether these tips and recommendations prompted the commission of the act, or only helped it to be realized.
Comments on Article 33 of the Criminal Code of the Russian Federation
When talking about the role of the instigator, you need to remember the following:
- Some legal theorists believe that incitement is possible not only in relation to the perpetrator, but also to other accomplices. For example, an instigator may push an organizer to create a criminal group that will directly commit murder. As of the beginning of 2021, there is no clear practice on this issue, and the Supreme Court of the Russian Federation has not yet clearly expressed its position.
- In some cases, the instigator may be a co-perpetrator of the murder. However, if such a situation occurs, there will be no talk of incitement - both accomplices will be held accountable directly under the relevant provisions of Art. 105 of the Criminal Code of the Russian Federation.
- The incitement must be directed towards the commission of a specific crime. When talking about murder, the person must be pushing for the death of the victim. General words (such as: “Finally deal with him,” “It’s time to get even,” etc.) usually cannot be considered as complicity in murder.
- Also, incitement must be directed at a specific person. The same calls to kill someone, but addressed to an indefinite circle of people, cannot be considered as incitement to commit murder.
How to properly understand the process of incitement?
This type of crime refers to complicity in murder. A variety of methods can be chosen, for example:
- requests and persuasion;
- misrepresentation;
- bribe;
- threats to create trouble or harm loved ones;
- blackmail;
- use of physical force;
- provocation to commit a crime with the aim of exposing the perpetrator.
There are different methods of incitement. It depends on the psychological characteristics of the alleged killer.
The actions of a person are recognized as incitement not only on the basis of the consent of the perpetrator to commit a crime, but also when the perpetrator proceeds to the corresponding illegal actions.
Corpus delicti
Speaking about Art. 33 of the Criminal Code of the Russian Federation, you need to remember that it is reference. Ultimately, the guilty person will be punished under Art. 105, and art. 33 and others will be used only when determining the amount of punishment. Nevertheless, speaking about the instigator, we can identify the same elements of the crime as in the murder itself. They will be:
- Subject is a person who is sane and has reached the age of criminal responsibility (specifically in this case - 14 years).
- The subjective side is a person’s attitude towards committing criminal acts. When talking about incitement to murder, we must remember that it is expressed in deliberate actions. You cannot incite unintentionally.
- The object is the same as in murder, human life.
- The objective side is the direct actions of the guilty person. Since we are talking about complicity, the objective side will be to create a motivation for the perpetrator to commit murder. It is illegal to incite murder by omission, although omission in certain circumstances may be considered complicity.
Examples
The role of the instigator is easier to understand using concrete examples..
So, for example, in 2011, the Supreme Court of the Republic of Karelia considered a case with the following plot. A., wanting to commit the murder of R., acted as an organizer.
He transferred money to the convicted B., so that he, acting as an intermediary, would persuade K. to commit murder through bribery. B., carrying out criminal intent, met with K. and, with the help of both bribery and threats, persuaded the latter to participate in the murder of R. The murder took place, B. received money from A.
Later, based on the results of the investigation of the case, he was convicted as an accomplice of A. and instigator of K.
As an example when a person’s actions were erroneously classified as incitement , we can mention the Byashimov case, considered in 1967 (unlike other branches, the fundamental principles of criminal law have changed little since the times of the USSR). This citizen was convicted by the court of first instance as an instigator of murder.
His actions were expressed in the fact that he wrote to his brother, who was serving in the army at that moment, about the immoral actions of his wife. Returning home, his brother committed murder and was convicted for it, and Byashimov was brought in as an instigator.
However, the Judicial Collegium for Criminal Cases of the USSR Supreme Court acquitted the convict, pointing out that Byashimy’s actions did not specifically induce the killer to commit a crime. The information he conveyed to his brother led to the commission of a crime, but the convict had no intent to kill the victim.
Discrimination from similar crimes
Incitement in itself is not a crime . It is only the form in which the guilty person participates in criminal activity (in our case, murder). Therefore, talking about delimitation from other elements of crime is not entirely correct.
However, we may be talking about distinguishing the role of the instigator from other accomplices in the murder. Therefore, it is necessary to distinguish between his role and the role of a co-executor, accomplice or organizer. The main difference between them is the following:
- It is impossible to be both an instigator and a co-principal - the co-principal will be held accountable separately, since his actions already contain the full corpus delicti.
- It is also impossible to act as an organizer at the same time - the activities of the organizer also include pushing the perpetrator to kill. There is no need to talk separately about incitement in this case.
- An instigator always commits a crime through action , but an accomplice can also participate through inaction (for example, by not fulfilling his duties and thereby making it easier for the killer to commit a crime). However, it is possible to participate in a crime as both an accomplice and an instigator. In this case, the actions will be qualified simultaneously under the relevant parts of Art. 33 of the Criminal Code of the Russian Federation.
Responsibility under Art. 105 of the Criminal Code of the Russian Federation and other articles
Usually the instigator is liable under the relevant paragraph of Art. 105 with reference to Art. 33 of the Criminal Code of the Russian Federation . However, situations are possible when a person who actually acts as an instigator will be held liable under one of the articles and without reference to Art. 33:
- The instigator is also a co-perpetrator. In this case, he will only be liable under Art. 105 of the Criminal Code of the Russian Federation.
- Incitement itself constitutes a separate offense.
The last one needs special attention. The offenses where incitement to murder is an independent crime include:
- Art. 150 of the Criminal Code of the Russian Federation - if a minor is involved in the crime as a perpetrator, and the instigator has reached 18 years of age. Depending on the specific circumstances of the case, the perpetrator will face up to 8 years.
- Art. 205.1 of the Criminal Code of the Russian Federation - if the murder is a terrorist act. In this case, the instigator faces a sentence of up to 20 years (depending on the circumstances of the case and the applicable part of the article).
- Art. 228.1 of the Criminal Code of the Russian Federation - if drugs were used to bribe the performer. The punishment will be up to 15 years.
- Part 1.1 art. 282.2 of the Criminal Code of the Russian Federation - if the murder was committed by a member of an extremist organization into which he was involved by the instigator. In this case, the instigator faces a penalty of imprisonment for a term of 4 to 8 years.
- Part 2 art. 361 of the Criminal Code of the Russian Federation - if the perpetrator is incited to commit an international terrorist act. Punishment – from 8 to 20 years.
Reference! Simply put, if the instigator is also a co-perpetrator, then liability threatens under Art. 105 of the Criminal Code of the Russian Federation, from 6 to 15 years of imprisonment, or from 8 to 20 or life in the case of murder with aggravating circumstances.
If the instigator is simply an instigator - similarly under Art. 105 of the Criminal Code of the Russian Federation, but with reference to Article 33 of the Criminal Code of the Russian Federation (this means that it is possible (!) the term will be less). In other cases (when a separate composition is formed) - based on the norms of a specific article (read in the list above).
It will be useful for the reader to read other materials about different types of murders:
- under extenuating circumstances;
- suicide;
- murder by a minor;
- crime while intoxicated;
- killing a person and punishment for it;
- causing the death of a child;
- euthanasia.
Responsibility for a bribe
The Criminal Code of the Russian Federation for incitement to give a bribe, where the citizen acts as a formal intermediary, provides for the following types of punishment:
- a fine reaching 500 thousand rubles, three or five times the size of the bribe;
- forced labor for up to a year;
- correctional labor for up to 2 years;
- deprivation of the right to hold positions in certain areas for up to 5 years.
If responsibility for incitement is provided within a group where everyone has been assigned their own role, the punishment can be harsher - fines of up to 4 million rubles are provided, as well as the possibility of imprisonment for a term of 7 to 12 years. All capable citizens over the age of 16 are subject to liability. There are all the signs of an offense being committed if at least part of the bribe was handed over in front of witnesses.
The punishment can be eased by admitting one’s own guilt, assistance in the investigation, as well as sincere repentance for the crime committed and the citizen’s absence of previous convictions, as well as the presence of young children.
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