Murder of a person by a minor: how many years are given for intentionally causing death under Art. 105 of the Criminal Code of the Russian Federation and due to negligence, for how long can a child be imprisoned under various articles?

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Murder of a newborn child by a mother – free answers from lawyers online

Quite often, people in a state of passion are capable of causing harm to others and commit irreparable acts. One of the most complex rules of modern criminal law is liability for the murder of a newborn child by a mother . This crime is serious, and when studying it in detail, it is necessary to take into account a huge number of factors that directly or indirectly could play a role in this tragedy.

Under what articles can a child be prosecuted if he killed?

Analyzing the content of Art. 20 of the Criminal Code of the Russian Federation, we can conclude that a minor who has reached the age of 14 will be liable under the following articles related to murder:

Art. 105 – general as well as qualified murder.
P. “b” part 3 art. 205 – a terrorist attack committed by a minor, during which the death of a person was intentionally caused.
Art. 277 – an attack on the life of a statesman or public figure in connection with his activities or as revenge for his activities.

Murder committed with extreme cruelty

The special cruelty of a murder should be understood as the special cruelty of the method of murder and its consequences (this includes a particularly painful way for the murdered person to commit the crime), and the special cruelty of the killer’s personality (his exceptional heartlessness, ruthlessness, ferocity, mercilessness), manifested in the crime committed.

It should be borne in mind that the establishment of particular cruelty is not within the competence of the forensic medical examination, since the concept of “cruelty” is not medical. This issue is resolved by the investigative and judicial authorities.

In its Resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 No. 1 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” in paragraph 8 indicated that when qualifying a murder under paragraph “d”, part 2 Art. 105 of the Criminal Code of the Russian Federation must be based on the fact that the concept of special cruelty is associated both with the method of murder and with other circumstances indicating the manifestation of special cruelty by the perpetrator. At the same time, in order to recognize a murder as committed with particular cruelty, it is necessary to establish that the intent of the perpetrator included committing the murder with particular cruelty.

A sign of special cruelty is present, in particular, in cases where, before the deprivation of life or in the process of committing a murder, the victim was subjected to torture, torture or mockery of the victim, or when the murder was committed in a way that the perpetrator knows is associated with causing special suffering to the victim (causing great number of bodily injuries, the use of painful poison, burning alive, prolonged deprivation of food, water, etc.).

At the same time, the multiplicity of injuries does not always indicate that a crime was committed with particular cruelty. As has already been said, in order to recognize a murder as committed with particular cruelty, it is necessary to establish that the perpetrator, inflicting many bodily injuries on the victim, was aware that he was causing him special torment and suffering.

Particular cruelty can be expressed in committing a murder in the presence of people close to the victim, when the perpetrator was aware that his actions were causing them special suffering.

Mockery of a corpse in itself cannot be regarded as a circumstance indicating the commission of a murder with particular cruelty. What was done in such cases, unless there is other evidence of the perpetrator showing particular cruelty before taking the victim’s life or in the process of committing a murder, should be qualified under the relevant part of Art. 105 and under Art. 244 of the Criminal Code of the Russian Federation, which provides for liability for desecration of the bodies of the dead.

The destruction or dismemberment of a corpse for the purpose of concealing a crime cannot be grounds for qualifying a murder as committed with particular cruelty.

However, in practice there is still no common understanding of these issues.

Moscow Regional Court Berezovsky S.N. was convicted under Part 2 of Art. 105 of the Criminal Code of the Russian Federation to 15 years in prison, with the first 10 years to be served in prison and the rest of the term in a general regime correctional colony.

By the verdict of the jury, Berezovsky was found guilty of being under the influence of alcohol on the territory of a car market located on the street on November 10, 2003, at about 9 p.m. **** in the city ****, in the building of the administration of the car market, in the rest room of the inspectors during a quarrel with T.V. Vasilyeva that arose on the basis of personal hostility. with the purpose of premeditated murder, he struck her with his hands in the face area and with a champagne bottle in the right temporal region. The victim lost consciousness from the blows. Berezovsky, believing that she was dead and wanting to get rid of Vasilyeva’s body, put it in the trunk of his Opel Cadet car and took it to the territory of the car market’s trading area, where, on the edge of the square adjacent to the bank of the Oka River, he took it out of the trunk. At that moment, the victim regained consciousness and began to call for help. Berezovsky, wanting to complete his criminal intent to kill, squeezed Vasilyeva’s neck with his hands and strangled her.

As a result of Berezovsky’s deliberate actions, Vasilyeva suffered life-threatening grievous bodily injuries in the form of: a closed craniocerebral injury resulting from repeated blows to the face in the frontal and right temporal region and indicated by multiple abrasions, bruises of the face, superficial bruised wounds of the right temporal areas with focal hemorrhages in the right temporal muscle, a crack in the internal bone grafting of the scales of the right temporal bone, focal hemorrhage under the pia mater of the left temporal lobe, cerebral vascular dystonia, edema of the brain substance.

Vasilyeva’s death occurred on the spot due to mechanical asphyxia from squeezing the neck organs with hands.

These actions were accompanied by bodily injuries in the form of multiple abrasions of irregular oval, crescent shape, anterior and anterolateral surfaces of the neck, multiple point and focal hemorrhages in the connective membrane of the eyes, a transverse fracture of the hyoid bone at the junction of the right greater horn with its body, with focal hemorrhage into the surrounding soft tissue, multiple pinpoint hemorrhages into the pulmonary tissue, focal ecphyserma and pulmonary edema, congestion of the internal organs, liquid state of the blood.

After Vasilyeva’s death, Berezovsky deliberately, showing particular cruelty, mocking the body of the deceased, exposed her and inflicted eight puncture wounds and cuts on the abdomen, chest, and genitals with the pocket knife he had.

The Cassation Chamber of the Supreme Court of the Russian Federation left the verdict unchanged.

In its ruling, the Cassation Chamber indicated that the court's conclusions about the guilt of the convicted person are based on the verdict of the jury, which is binding on the presiding judge. The specified requirement of the law in the present case has been met. There are no procedural violations leading to the reversal of the verdict in the case. They are not indicated in the cassation appeal either. At the trial, evidence obtained in compliance with the law was examined. The punishment for Berezovsky was assigned taking into account the nature and degree of public danger of the crime committed, information about the identity of the perpetrator and the verdict of the jury that he did not deserve leniency.

These court decisions were appealed by the defense in a supervisory procedure to the Supreme Court of the Russian Federation.

Supervisory complaint (extract)

By the verdict of the judicial panel for criminal cases of the Krasnodar Regional Court dated May 21, 1998, Sergey Nikolaevich Berezovsky was convicted under paragraph “d” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation to 15 (fifteen) years of imprisonment with the first 10 (ten) years to be served in prison, and the remaining term of the sentence in a general regime scientific and technical commission.

By the ruling of the Cassation Chamber of the Supreme Court of the Russian Federation dated September 22, 1998, the verdict of the jury and the verdict of the Krasnodar Regional Court dated May 21, 1998 were left unchanged.

By the verdict of the jury and the verdict of the court, Berezovsky S.N. found guilty of premeditated murder of the victim Vasilyeva with particular cruelty.

I consider this sentence illegal and subject to change for the following reasons.

Qualifying Berezovsky’s actions as premeditated murder with particular cruelty, the court stated in the verdict that “after Vasilyeva’s death, Berezovsky deliberately, showing particular cruelty, mocking the body of the deceased, exposed her and with a pocket knife inflicted eight stab wounds and cuts to the abdomen, chest, genitals organs."

It is these actions of Berezovsky, as indicated in the verdict, that are subject to qualification under Art. 102 paragraph “g” of the Criminal Code of the RSFSR as intentional murder with particular cruelty.

However, such a conclusion of the court cannot be considered justified.

As the Plenum of the Supreme Court of the Russian Federation explained in paragraph 8 of Resolution No. 1 of January 27, 1999 “On judicial practice in murder cases,” mockery of a corpse in itself cannot be regarded as a circumstance indicating the commission of a murder with particular cruelty. What was done in such cases, unless there is other evidence of the perpetrator showing particular cruelty before taking the victim’s life or in the process of committing the murder, should be qualified as unqualified murder under Art. 244 of the Criminal Code of the Russian Federation, which provides for liability for desecration of the bodies of the dead.

As follows from the court verdict, other than mockery of the corpse, no other facts were established in the case that would indicate that Berezovsky not only had the goal of taking Vasilyeva’s life, but also cruelly torturing her before she was killed .

Having agreed with the arguments of the supervisory complaint, the Deputy Chairman of the Supreme Court of the Russian Federation filed a protest against the court decisions.

The protest stated that the court decisions taken in the case are subject to change on the following grounds.

The presiding judge indicated in the verdict that Berezovsky’s actions are subject to qualification under Art. 105 part 2 paragraph “d” of the Criminal Code of the Russian Federation as intentional murder with particular cruelty. The fact of mockery of the corpse, according to the court, is confirmed by the conclusion of the forensic medical examination, the protocol of the inspection of the scene of the incident and photographic tables for it.

Berezovsky himself, when he repented of his deeds, said that he mocked the body of the victim out of anger, in the form of revenge, with the goal of abusing the murdered woman. The fact that Berezovsky wanted to violate Vasilyeva, whom he killed, is confirmed by the nature of his actions: he cut off the nipples of the breast, cut the stomach, cut out the genitals, and left everything at the crime scene without trying to hide what he had done.

Thus, the verdict states that the particular cruelty of Berezovsky’s actions was expressed only in mockery of the victim’s corpse.

Meanwhile, according to the meaning of the law, a sign of special cruelty is present in cases where, before the deprivation of life or in the process of committing a murder, the victim was subjected to torture, torture or mockery of the victim, or when the murder was committed in a way that the perpetrator knows is associated with causing special suffering to the victim. Mockery of a corpse in itself cannot be regarded as a circumstance indicating the commission of a murder with particular cruelty.

In this case, the presiding judge did not provide any data in the verdict indicating that the victim was subjected to special suffering and torment before the deprivation of life or during the murder.

In the case, it was established that in the process of taking life, Berezovsky did not have any intention to cause special suffering to the victim. Consequently, he mocked not the victim of the crime, but the body of the deceased, and these actions cannot be qualified as a murder committed with particular cruelty. Under such circumstances, Berezovsky’s actions should be qualified under Art. 103 of the Criminal Code of the RSFSR (currently Art. 105 Part 1 of the Criminal Code of the Russian Federation).

When assigning punishment, one should take into account the nature and degree of public danger of the crime, personal data, as well as the fact that the jury found Berezovsky not worthy of leniency.

By a resolution of the Presidium of the Supreme Court of the Russian Federation, the protest was satisfied and Berezovsky's punishment was reduced from 15 to 10 years' imprisonment.

When they cannot attract due to age?

However, there are a number of crimes for which minors under 16 years of age cannot answer, even if these crimes involve intentionally causing death. These include:

Art. 106 – Murder of a newborn child by a mother. Even if a girl under 16 gave birth to a child and killed him, she cannot be held criminally responsible here.
Art. 107 – Murder in the heat of passion. Affect is a sudden and strong emotional disturbance when a person partially loses control over his actions. In cases where the passion is caused by the unlawful actions of the victim, the killer will receive a lighter punishment - and a minor under 16 years of age will not answer at all.
Art. 108 – Murder involving excess of self-defense measures or measures necessary to apprehend a criminal.
Art. 109 – Careless causing of death. Although formally this offense is not considered murder (according to the current criminal legislation of Russia, only intentional deprivation of life is considered murder), it is still: a minor under 14 years of age will not be held criminally liable for such an act. You can find out more about a detailed analysis of the concept of causing death by negligence here.

Criminal law rules regarding the murder of a child

Criminal law singles out a category of crime victims as a separate item only if either the victim needs special protection or justice requires special punishment.

In relation to cases where a minor becomes a victim of murder, there are two main provisions of the Criminal Code of the Russian Federation:

P. “c” part 2 art. 105 of the Criminal Code of the Russian Federation is a general rule on murder, which, however, applies such a qualification as murder of a minor.
Art. 106 of the Criminal Code of the Russian Federation - a situation where the victim is a newborn, and the killer is his mother shortly after birth.

However, the difference between these norms is too significant: clause “c” of Part 2 of Art. 105 concerns any cases where the victim is a young child, and Art. 106 – exceptionally narrow situations when a woman, being in a psychologically traumatic situation or having not yet fully recovered after childbirth, commits the murder of her child. It is precisely because of the excessive narrowness of further Art. 106 of the Criminal Code of the Russian Federation will not be discussed.

But regarding clause “c” of Part 2 of Art. 105 the following should be kept in mind:

First of all, we must be guided by the general definition of murder. In practice, this means that the death must be caused intentionally. Carelessness, even if it resulted in death, is not considered murder in current criminal law (more information about the analysis of the concept of causing death by negligence can be found here).
Murder of a minor is a charge included in Part 2 of the article on murder. This part provides for special variants of this crime, punishable more harshly than ordinary murder.
Clause “c” part 2 includes responsibility for the murder of not only a minor, but also another helpless person, as well as a kidnapped person. The increased severity of punishment in this case is due to the fact that, from the point of view of public morality, the murder of a child, an old man or another person who cannot defend himself is a more terrible act than ordinary murder.
Criminal legislation does not define the concept of “minor”, therefore, for the correct application of this article it is necessary to use the norms of other branches of law.
In particular, if we turn to the civil, then, according to Art. 28 of the Civil Code of the Russian Federation, we can conclude that a minor should be considered one who has not reached the age of 14 years. This analogy is also confirmed by the fact that 14 years is the minimum age of criminal responsibility according to Art. 87 of the Criminal Code of the Russian Federation.
Also, criminal law does not provide a clear definition for the helpless state of a person. The fact is that current law enforcement interprets this sign differently in relation to different crimes. In general, you can focus on clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1 of January 27, 1999. Having analyzed the practice of considering cases under Art. 105 of the Criminal Code of the Russian Federation, the Plenum identified as helpless persons who, due to age, illness or mental disorder, cannot correctly perceive what is happening to them and around them.
Previously, law enforcement practice tended to classify sleepers and those in a state of intoxication (alcohol or drugs) as helpless persons. However, after 1999, when the above-mentioned resolution was adopted, the courts (including the Supreme Court) began to approach this issue differently, excluding sleep and intoxication from signs of helplessness in relation to murders. In relation to crimes related to sexual freedom or integrity, they are still used as signs of the helpless state of the victim.

Important: The qualifying feature in relation to clause “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is the helpless state of the victim.

However, can every minor be called helpless? In practice, this issue remains controversial, and in most cases, situations where the murdered person is under 14 years of age are considered precisely on this point.

You can find out more about the punishment for killing a person here.

Key points related to the age of the offender

Criminal liability is closely related to the age of the perpetrator. Art. 20 of the Criminal Code of the Russian Federation provides for the following conditions:

Full responsibility begins at age 16.
From the age of 14, a person can be responsible for committing a number of crimes provided for in Part 2 of Art. 20 of the Criminal Code of the Russian Federation. These include murder (Article 105 of the Criminal Code of the Russian Federation).
Some offenses require the person to be 18 years of age at the time of their commission. In particular, this applies to Art. 150 of the Criminal Code of the Russian Federation, which punishes the involvement of minors in criminal activities.

However, to bring to justice a person who is 14 years old but not yet 18 years old, special rules apply, provided for in Chapter 14 of the Criminal Code of the Russian Federation.

It states the following:

A person who has reached 14 years of age but not 16 years of age may be sentenced to imprisonment.
The sentence for juveniles has a lower upper limit than for adults. The lower limit for them is reduced by half.

Corpus delicti

The subject of the crime will be any sane person who has reached 14 years of age at the time of the murder (Part 2 of Article 20 of the Criminal Code of the Russian Federation).
The subjective side of this crime is manifested only in intent.
The offender must either directly desire to cause the death of a minor (direct intent), or know about its possibility, but be indifferent to it (indirect intent). A feature of the subjective side, however, will be that the criminal knew for sure or could not help but know that the victim is a minor or is in a helpless state.
The object of the crime provided for in paragraph “c” of Part 2 is the same as under the rest of Art. 105 – human life. The essence of murder is that a person is deprived of life, death is caused to him. Therefore, in this case the encroachment will be on the life of a minor.
The objective side of the crime in question consists of the actions that resulted in the death of the victim.

The last point deserves special attention. In any crime related to murder, it is necessary to identify the following features:

Specific actions committed by the perpetrator (stabbing with a knife, shooting with a firearm, adding poison to food, etc., etc.).
Consequences – namely the occurrence of death.
Causal connection between the actions of the perpetrator and the occurrence of death. In some cases, death may occur due to natural causes, as a result of the actions of another person - in short, not because of anything the alleged killer did.

If at least one of these signs is missing, there is no need to talk about the presence of an objective side.

It must also be borne in mind that in relation to the murder of minors and helpless persons, the fact that murder can be committed not only by action, but also by inaction is more relevant than ever. In many cases, a young child or a helpless old man or patient cannot take care of themselves and ensure their livelihoods. In this case, the culprit simply needs to leave them - and death from thirst and hunger is possible.

Differences in crime from adults

Text of Art. 105 of the Criminal Code of the Russian Federation, concerning murder, does not contain any indication that the elements of the crime in this case will differ depending on the age of the attacker. However, there are some nuances that must be taken into account when considering the case.

The composition of any crime consists of 4 elements. In relation to murder, they will look like this:

The object is what the attack is aimed at. In this case, it is the life of another person.
The objective side is the specific actions or inactions taken by the guilty person. In relation to murder, there will be no difference in this element for an adult or a juvenile offender.
The subject is the person who committed the crime. As already mentioned, liability under Art. 105 of the Criminal Code of the Russian Federation begins at the age of 14. If we take this circumstance into account, there will not be any significant differences.
The subjective side is the mental attitude of the perpetrator to the act he committed. This includes intent (in relation to murder - both direct and indirect, but unintentional causing of death is considered under another article), motive, etc.

Specifically, on the subjective side, there are certain differences between crimes committed by adults and teenagers. As a rule, minors are characterized by social and mental immaturity. That is why, when considering a case and imposing a punishment, it is necessary to determine as clearly as possible how much the teenager was aware of the illegality and social danger of his act, as well as what motives he was guided by.

Important! For a correct assessment of the subjective side of the act in cases where minors are accused, a psychological and psychiatric examination is almost mandatory.

More information about murder committed by adults and the punishment for it can be found here.

Objective side of the crime

The killing of a newborn child by a mother is a crime against life. In the modern domestic criminal legal framework, this type of crime is privileged, since when a crime of this nature is committed, in most cases there is a state of passion, as well as circumstances of psychophysical properties. Previously, such a crime was regulated under Art. 105 of the Criminal Code of the Russian Federation and was equated to ordinary murder. However, over time it came under the jurisdiction of Art. 106 of the Criminal Code of the Russian Federation and began to be considered as a special crime committed under the influence of certain factors and circumstances.

In accordance with the current norms of criminal law, the objective side of this crime will be the death of a newborn by his own mother. It is worth noting that this crime can be committed both through certain criminal actions (wounding, strangulation, etc.) and through inaction, for example, by consciously refusing to feed a newborn baby.

The elements of this crime include many factors, including both the psychological imbalance of the child’s mother and intent. The law provides for three types of this crime:

Killing a child during or after childbirth. In this situation, the court takes into account the age of the child against whom the crime was committed. In this category, a short period of time is allowed, which is no more than 30 days from the date of birth;
The murder of a newborn child by a mother in a situation characterized by a negative impact on the psyche of the mother in labor. As a rule, pregnancy causes some mental disorders in women, and if additional aspects appear that can negatively affect the expectant mother, then mental problems may very likely arise that will lead to a terrible tragedy. Anything can be attributed to such reasons, but most often in judicial practice there is a father’s abandonment of a child, his sudden death, bullying of the woman in labor by others, etc.;
Murder committed in a state of psychological imbalance, or in the presence of mental problems. This type of crime is committed due to problems with the woman’s health, primarily psychological. Often, before and after childbirth, various depressions and psychoses may occur, which can push the new mother to commit a serious crime.

How many years do you get for causing death under Art. 105 of the Criminal Code of the Russian Federation?

Art. 105 of the Criminal Code of the Russian Federation, which provides for liability for murder, consists of two parts:

Ordinary murder - part 1.
The same crime, but committed with additional qualifying characteristics (murder of two or more persons, with particular cruelty, etc.) – part 2.

Both parts provide for different penalties:

Part 1 – from 6 to 15 years;
Part 2 – from 8 to 20 or for life.

When assigning punishment to a minor, the provisions of Art. 88 of the Criminal Code of the Russian Federation. Part 6 of this article provides that for those who have committed a particularly serious crime, the maximum term cannot be higher than 10 years. This category of crimes, according to Part 5 of Art. 15 of the Criminal Code of the Russian Federation, include those where the maximum punishment exceeds 10 years. It is easy to notice that both parts of Art. 105 of the Criminal Code of the Russian Federation belong to this category. Thus, no matter what type of murder a minor commits, he cannot be sentenced to more than 10 years in prison.

As for the lower limit of punishment, clause 6.1 of Art. 88 of the Criminal Code of the Russian Federation. It states that for minors, the minimum sentences are reduced by half. Therefore, a teenager can be punished at a minimum:

for committing murder under Part 1 of Art. 105 of the Criminal Code of the Russian Federation – for 3 years;
for the same crime provided for in Part 2 of the same article - for 4 years.

Murder of a newborn child by a mother: discourse

P. “c” part 2 art. 105 of the Criminal Code of the Russian Federation provides for a qualified corpus delicti of murder - the murder of a minor or another person, known to the perpetrator to be in a helpless state, as well as associated with the kidnapping of a person. Punishment for this crime is provided in the form of imprisonment for a term of eight to twenty years with restriction of freedom for a period of one to two years, or life imprisonment, or the death penalty. The murder of a newborn child by a mother could correspond to the offense provided for in paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, however, for such a crime there is Art. 106 of the Criminal Code of the Russian Federation. It provides punishment for the murder by a mother of a newborn child during or immediately after childbirth, as well as the murder by a mother of a newborn child in a psychotraumatic situation or in a state of mental disorder that does not exclude sanity.

For this crime in Art. 106 of the Criminal Code of the Russian Federation provides for punishment in the form of restriction of freedom for a term of two to four years, or forced labor for a term of up to five years, or imprisonment for the same term.

Unqualified murder (Part 1 of Article 105 of the Criminal Code of the Russian Federation) is punishable by imprisonment for a term of six to fifteen years, with or without restriction of freedom for a term of up to two years.

Thus, for the murder of a newborn child by a mother, a more lenient punishment is provided - as in relation to paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and in relation to Part 1 of Art. 105 of the Criminal Code of the Russian Federation. Art. 106 of the Criminal Code of the Russian Federation provides for a privileged offense of murder.

Thus, by the verdict of the Industrial District Court of Kursk dated July 7, 2011 No. 1-272-11g, a woman who gave birth to a child secretly and, due to her unwillingness to support him, killed him behind the garages, after which she left the newborn in the snow, was sentenced to three years in prison freedom. It was established that the plan to kill the child existed from the beginning, i.e. was formed before childbirth. Thus, there was a desire to commit murder, dictated by an extreme degree of cynicism. And, having given birth to a child, the condemned woman put her plan into action. This fact indicates a clearly high degree of social danger for a person capable of such cynical actions. Three years of imprisonment is a term two times less than the minimum term of imprisonment provided for in Part 1 of Art. 105 of the Criminal Code of the Russian Federation for murder.

The subjective side of the crime under Art. 106 of the Criminal Code of the Russian Federation, coincides with the subjective side of Art. 105 of the Criminal Code of the Russian Federation and is characterized by guilt in the form of direct or indirect intent.

1) An important question is the motive of the legislator who adopted this norm and provided for a more lenient punishment for this crime than for ordinary murder. Apparently, we are talking about the manifestation of humanism towards a woman who is in a state of excitement caused by childbirth. One of the variants of the crime provided for in Art. 106 of the Criminal Code of the Russian Federation is the murder of a newborn child by a mother in a psychotraumatic situation or in a state of mental disorder that does not exclude sanity.

However, it should be understood that many murders are committed in a state of excitement, which is not a mitigating circumstance. It is also worth remembering that the privileged offense is committing murder in a state of passion, which is provided for in Article 107 of the Criminal Code of the Russian Federation. It is affect, as an obligatory sign, that makes it possible to provide a more lenient punishment for a murder committed in a given state. However, Art. 106 of the Criminal Code of the Russian Federation provides for a composition in which there is no passion. And if affect is indeed a mental state that allows one to mitigate punishment, then the mother’s excitement (which does not exclude sanity and does not imply the occurrence of a state of passion) does not really seem to be a sufficient basis for a more lenient punishment.

2) On the other hand, the establishment of a lenient punishment for this crime allows us to draw a conclusion about a lesser degree of protection of the rights of a newborn child - provided that for the murder of a minor or another person who is known to the perpetrator to be in a helpless state (provided for in paragraph “c” of Part 2 Article 105 of the Criminal Code of the Russian Federation) provides for a more serious punishment than for unqualified murder (Part 1 of Article 105 of the Criminal Code of the Russian Federation).

It follows from this that there is a kind of “isolation” from the array of crimes classified under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, murder by the mother of a newborn child.

3) It should also be noted that the murder by a mother of her own child is an extremely immoral act that is contrary to human essence and nature. It is difficult to come up with a justification that could evaluate this act as less dangerous, less immoral than the murder of a minor or helpless person (clause “c” of Part 2 of Article 105 of the Criminal Code of the Russian Federation) and, even more so, than murder (Part 1 of Art. 105 of the Criminal Code of the Russian Federation). The conclusion is that a mother killing her own newborn child is a particularly sophisticated and cruel form of murder. It should also be noted that the psychological state of the mother, which is positioned as a justification for a lenient punishment for this act, does not imply affect or insanity.

Qualifying the murder of a newborn child by a mother as a privileged element of murder clearly does not correspond to the principle of humanism that should be shown to victims of crime. The problem is that it is humanism that justifies a lenient punishment for a woman who committed such a cynical act.

It should be understood that the humanism of criminal law does not manifest itself at all in “pity” for criminals, but in concern for public order. The essence of criminal punishment is not “revenge” on the criminal for violating the Criminal Code of the Russian Federation, but for the purposes provided for in Part 2 of Art. 43 of the Criminal Code of the Russian Federation: restoration of social justice, correction of the criminal and prevention of the commission of new crimes.

Therefore, more serious punishments should be provided for more serious crimes. The amount of punishment must correspond to the degree of social danger of the crime, which also characterizes the person who committed it. The more serious the crime committed, the more serious the punishment required to correct such a criminal, as well as restore justice and prevent the commission of new crimes.

Art. 106 of the Criminal Code of the Russian Federation and the lenient punishment provided for in it for such a cruel, cynical, immoral and unnatural act for a person clearly does not correspond to its social danger and clearly does not allow such a lenient punishment to achieve its goals.

Therefore, the question of recognition of Art. 106 of the Criminal Code of the Russian Federation, no longer in force. If such a change is made to the Criminal Code of the Russian Federation, such crimes will be qualified under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and for them a corresponding more severe punishment will be provided, which is much more consistent with this act.

How long can a child be imprisoned for an assassination attempt?

The Criminal Code of the Russian Federation provides for punishment not only for completed murder, but also for an attempt to commit it. In this case, the culprit will be punished under the same article. 105 of the Criminal Code of the Russian Federation, but with reference to Part 3 of Art. 30 of the Criminal Code of the Russian Federation, which defines the concept of attempt.

Art. 30 does not stipulate features related to the age of the offender, so a minor will be liable for attempted murder in the same way as an adult attacker.

However, it must be taken into account that an attempt has its own upper limit of punishment. It is provided for in Art. 66 of the Criminal Code of the Russian Federation. According to its norms, the maximum sentence for an attempt cannot be more than three quarters of that specified in the relevant article. However, it should be noted that for teenagers this norm is irrelevant: even under Part 1 of Art. 105 of the Criminal Code of the Russian Federation, three quarters of the maximum term is 11 years 3 months, which is already more than 10 years, provided for in Art. 88 of the Criminal Code of the Russian Federation.

More information about attempted murder can be found here.

How long are they imprisoned for tax evasion now? How can an accountant protect himself?

We have prepared a traditional review of criminal prosecution for tax and other business offenses at the end of 2021 and the beginning of 2021. As always, our goal is not to intimidate business leaders and chief accountants, but to give an objective picture of the real risks. But they exist.

When preparing the article, only official data from the Ministry of Internal Affairs, the Prosecutor General's Office, the Investigative Committee, the Federal Tax Service, Rosstat, and the Department of Judicial Proceedings of the Supreme Court of the Russian Federation were used.

While the government is discussing the regulatory guillotine, the real guillotine on tax crimes is working in full force, but one cannot help but admit that it has become more selective:

Thus, the continuing decrease in the number of on-site tax audits has also led to a decrease in identified tax crimes (materials for which are registered in the KUSP - a book for recording reports of crimes), and therefore in those investigated (for which criminal cases have been initiated).

You can learn everything about how to avoid getting into trouble due to tax audits in the Clerk online course - “Tax Audits. Defense tactics" . It is already available to users. Watch the story about this online course from its author Ivan Kuznetsov.

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It is not difficult to notice that there is still a whole abyss between the identified tax crime and the criminal case initiated, in which some audit materials are terminated by decisions to refuse to initiate a criminal case, some - after compensation for damage or after the expiration of the period for bringing to responsibility, some materials "football" “for months between districts or an operational unit and the investigation, and some... let's say, are terminated on grounds not provided for by the Code of Criminal Procedure of the Russian Federation.

Even fewer cases reach trial and verdicts: the Judicial Department will sum up the results of 2021 only by June, so the 273 verdicts on the graph are data for 6 months of 2021.

If the case goes to court, then according to the tax structure, you can actually go to prison; in 6 months of 2021, 25 people did this, and 3 people received more than 5 years of imprisonment:

Let us remember that sanctions for tax crimes also provide for such severe sentences. For convenience, we have summarized the crimes in a general table:

It is interesting that tax crimes remain “male”, for example, out of 121 convicted under Part 2 of Art. 199 of the Criminal Code of the Russian Federation, only 17 women. Criminals most often (72%) are between 30 and 49 years old and very rarely younger - apparently they do not have time to become interesting to law enforcement officers. Our tax optimization seminars are also most often attended by people aged 30-49 years, but there are usually more women (mostly women are chief accountants, men are business owners or managers), so it turns out that women are more worried about their safety and, accordingly, become defendants less often. There is something for male business owners and managers to think about.

Despite the fact that men are more often convicted in tax cases, women also have many problems. The prospects for chief accountants due to the high-profile case of Galina Akhmadeeva are described in detail in our course “Tax Audits. Defense tactics."

Check out the program.

Almost every on-site tax audit is a potential criminal case initiated against the manager; the average amount of additional assessments of 22 million rubles is quite enough for Part 2 of Art. 199 of the Criminal Code of the Russian Federation:

On average, police officers are also interested in smaller amounts of arrears, since the damage to the budget from tax crimes is almost 95 billion rubles, which means one detected crime costs 12.9 million rubles. To put it very roughly, this is cashing out 25 million rubles over three years, or 694 thousand rubles per month. Since we have been practicing tax lawyers for more than 10 years, we can confidently say that every business, starting from small ones, is at risk.

But there is always the opportunity to “jump off” - in accordance with Art. 28.1 of the Code of Criminal Procedure of the Russian Federation - the court, as well as the investigator, terminates criminal prosecution against a person suspected or accused of committing tax crimes if, before the appointment of a court hearing, the damage caused to the budgetary system of the Russian Federation as a result of the crime is compensated in full (arrears, fines, penalties). Another thing is that the damage will need to be compensated in full and without dispute.

Why can’t the OBEP go away without a criminal case, and the tax authorities without additional charges?

For the first parts of tax articles, the criminal case is most often terminated altogether due to the expiration of the statute of limitations, because they are of minor gravity, and therefore on the basis of Art. 78 of the Code of Criminal Procedure of the Russian Federation, a person is exempt from criminal liability if two years have passed from the date of commission of the crime. In this case, the statute of limitations is calculated from the day the crime was committed (filing an inaccurate declaration) until the court verdict enters into legal force.

But this does not mean at all that in this case or in the event of termination of the criminal case on another non-rehabilitating basis (for example, an amnesty), the state will not have to compensate for the damage, and the well-known case of accountant Galina Akhmedova is proof of this.

As for the trends in 2021, already in January 2021 the Ministry of Internal Affairs reported an increase of 3.4% in economic crimes compared to January 2021. At the same time, grave and especially grave crimes in the total number of detected economic crimes amounted to 70.5%.

How is the online learning center Klerk.ru different from others?

The Kommersant newspaper published information in November 2021 that in order to strengthen the fight against tax evasion, the central office of the Investigative Committee of Russia (ICR) recommended its employees to identify and independently investigate related crimes, including those related to illegal banking activities. Previously, such investigations were transferred to the Ministry of Internal Affairs, but the Investigative Committee believes that tax crimes should be investigated in full with those that contribute to them.

The joint order of the Ministry of Internal Affairs of Russia N 317, the Federal Tax Service of Russia N ММВ-7-2/ [email protected] dated 05.29.2017 “On the procedure for submitting the results of operational investigative activities to the tax authority” and Letter of the Federal Tax Service and the Investigative Committee of the Russian Federation N ED-4-2 really works / [email protected] dated July 13, 2021, together with the “Methodological recommendations “On research and proof of facts of deliberate non-payment or incomplete payment of tax (fee)” (in which tax officers are instructed to look for intent during on-site tax audits to improve the prospects for initiating a criminal case) .

But often the severity of the law continues to be compensated by its non-enforcement: in some Federal Tax Service Invoices they allow you to change invoices from one one-day invoice to another without additional tax payment; When identifying the use of “paper VAT”, tax authorities in most cases require a VAT adjustment without adjusting the income tax, and not all of the disputed counterparties are kicked out at once.

At the same time, this paradigm of tax optimization and business building carries a time bomb that entangles organizations with virtual inventory balances, debts to controversial counterparties, loans and bills, or numerous individual entrepreneurs separating flows with and without VAT, as well as denominations and an artificially complicated structure business.

competently and without unnecessary stress and labor costs to resist the pressure of tax authorities during audits;
determine which actions of tax officials and police during inspections are illegal;
correctly read the documents accompanying the inspections: the decision on the inspection, requirements for documents, the act, interrogation protocols;
answer correctly during interrogations;
understand all tax control activities: counter, interrogation, inventory, inspection, seizure;
protect information from inspectors;
correctly build a defense in the face of a criminal threat;
understand what actions of an accountant will lead him to vicarious liability.

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Responsibility for threats

The threat of murder constitutes a separate crime under Art.
119 of the Criminal Code of the Russian Federation. According to it, the maximum penalty for Part 1 is up to 2 years, for Part 2 (if the crime was committed based on political, social, racial or other hatred) – up to 5 years.

If this crime is committed by a teenager, the consequences will be as follows:

If he is under 16 years old , there will be no liability.
If there are 16, but not 18 , he will answer, but the punishment will not involve imprisonment. He may be assigned compulsory or corrective labor under Art. 119 of the Criminal Code of the Russian Federation, but taking into account the rules of Parts 4 and 5 of Art. 88 of the Criminal Code of the Russian Federation.

Punishment for this crime

As judicial statistics show, in recent years courts have begun to consider a huge number of cases related to the deprivation of life of newborns. According to some experts, the number of such crimes has increased approximately 10 times over the past 20 years. And this does not take into account unreported facts. Do not forget that many women can simply hide the fact of their pregnancy and get rid of the child after childbirth.

As judicial practice shows, in the vast majority of cases of this kind, criminals receive the minimum punishment, namely suspended sentences or forced labor. This is primarily due to the fact that often the court simply cannot determine the real degree of responsibility of the mother who decided to get rid of her child.

In Art. 106 of the Criminal Code of the Russian Federation states that as punishment for the murder of newborn children, measures such as forced labor for a period of 2 to 4 years, a suspended sentence for the same period of time, or actual imprisonment can be applied.

As for specific situations, the court will determine the punishment based on the circumstances of the case, as well as after examining all the factors that led to the death of the newborn. If it is established that the murder was committed consciously, then the liability will be much more severe.

Author of the article

Causing death by negligence

Art. 105 of the Criminal Code of the Russian Federation provides for liability for causing death intentionally. However, in practice, there are cases when the perpetrator did not want to kill, but as a result of his actions the victim accidentally died. How will a minor respond in such a situation?

Liability for careless causing of death is provided for in Art. 109 of the Criminal Code of the Russian Federation. The maximum punishment under it is imprisonment for up to 2 years, and if a person did not fulfill his professional duties or accidentally killed two or more - up to 3 years.

However, Part 2 of Art. 20 of the Criminal Code of the Russian Federation in the list of articles for which responsibility begins at the age of 14 does not contain Art. 109. Consequently, the teenager will not be held liable for recklessly causing death.

It’s a different matter if death occurred as a result of grievous bodily harm caused intentionally, when the perpetrator simply wanted to cripple the victim, but she died unexpectedly. This crime is provided for in Part 4 of Art. 111 of the Criminal Code of the Russian Federation, and the perpetrator will be liable for it from the age of 14.

Who is responsible for whom?

Parents bear full responsibility for the actions of their children up to a certain age.
Upon reaching the age of 14, minors already bear independent criminal liability for certain crimes. Article 87 of the Criminal Code of the Russian Federation, Chapter 14 states that those who are already 14 years old, but have not yet turned 18, are considered minors.

The Criminal Code of the Russian Federation has an entire chapter devoted to the responsibility of minors for offenses.

What are the punishments for what crimes?

You need to know that from the age of 14, criminal liability is imposed only for 32 particularly serious offenses , which are listed in Article 20 of the Criminal Code of Russia.

Among them:

murder;
rape or sexual assault;
intentional infliction of grievous/moderate harm to health;
kidnapping;
hijacking;
theft, robbery, robbery;
terrorist attack

In addition to these crimes, minors may also be held responsible for:

false report of a terrorist attack;
failure to report a crime;
intentional destruction or damage to property under aggravating circumstances;
participation in mass riots;
vandalism;
rendering vehicles or means of communication unusable;
extortion.

Many teenagers believe that these are not such serious crimes, and they will only be reprimanded for drawings on the walls or lying about a bomb, but these are precisely the violations for which you can get a criminal record at the age of 14.

For most crimes, responsibility begins only at 16 years of age.

Examples

Let's see what real cases look like in which the killers are minors.

First

17-year-old K. was drinking alcoholic beverages with a group of his friends. During the feast, he had a conflict with N., who was also present (K. was jealous of his girlfriend). The friends of both who were present there reassured K. and N., the conflict seemed settled.

However, when the company dispersed after the party, K. and N., together with another friend, returned the same way. A quarrel arose again, with the friend supporting N. Left in the minority, K. pulled out a folding knife and stabbed N. several times in the stomach. N. died on the spot from his wounds.

After K.’s identity was established, he wrote a confession and insisted that he was in a state of passion at that moment due to insults from the victim. However, the examination showed that he was completely sane and was not in a state of strong emotional disturbance at the time of the murder. As a result, K. was sentenced to 8 years in a correctional colony.