ST 109 of the Criminal Code of the Russian Federation.
1. Causing death by negligence 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.
2. Causing death by negligence due to improper performance by a person of his professional duties - is punishable by restriction of freedom for a term of up to three years, or by forced labor for a term of up to three years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or imprisonment for the same period with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
3. Causing death by negligence to two or more persons - punishable by restriction of liberty for a term of up to four years, or forced labor for a term of up to four years, or imprisonment for the same term with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
Commentary to Art. 109 Criminal Code
1. The crime under analysis differs from murder only in the form of guilt.
2. Improper performance of professional duties by the perpetrator means the behavior of a person that does not fully or partially comply with the official requirements or instructions imposed on the person.
3. If there is a special norm providing for liability for causing death due to improper performance of professional duties by a person (for example, Part 2 of Article 143, Part 2 of Article 216 of the Criminal Code), a special norm is subject to application.
How to prove that death was caused by negligence
It is not easy to distinguish between causing death by negligence and murder. However, it is very important to do this: the term and form of punishment for the offender depends on the classification of the crime. Witnesses are involved in the investigation, as well as numerous experts in the field of criminology, medicine and psychology. It is important to identify the elements of the crime, including whether the suspect has malicious intent and intention to kill the victim or cause serious harm to his health.
To prove that death occurred as a result of negligence and to classify the crime under Article 109 of the Criminal Code, the following help:
- witness statements. Witnesses can provide information that will become the basis for an indictment. For example, in favor of causing death by negligence are the attempts of the accused to prevent the death of the victim, his state of shock after realizing the fact of the death of another person, etc.;
- analysis of the psychological portrait of the criminal, characteristics of his personality and the presence of a connection with the victim. Criminal psychologists can cite facts that prove that the accused could not have intended to kill the victim or did not have any personal connections or conflicts with him that could have caused the murder. Refusal to undergo a psychological examination may become an aggravating circumstance and lead to suspicions that the suspect has intentions towards the victim that he wishes to conceal;
- analysis of the circumstances of the case. It is important to find out for what reasons the death of the victim occurred, whether the accused had the opportunity to prevent it, whether his actions are related to the consequences in the form of the death of another person directly or indirectly. Each new evidence can change the court's decision, so great attention is paid to collecting evidence. The decision to order examinations is made by a judge or investigator.
IMPORTANT! At trial, it is important for the lawyer to prove that the defendant did not expect that his actions would cause the death of the victim. Punishment is excluded if the accused did everything possible to prevent the death of another person or did not realize at all that fatal consequences could occur as a result of his actions.
Second commentary to Art. 109 of the Criminal Code of the Russian Federation
1. The main elements of causing death by negligence are formulated in Part 1 of Art. 109 of the Criminal Code. The object of this crime is no different from the object of murder. There are no significant differences in the objective side of causing death. This act can be committed either by action or by inaction.
2. The subjective side of this crime is characterized by negligence in the form of negligence or frivolity. When distinguishing causing death by frivolity from murder with indirect intent, one should keep in mind the similarity of the content of the intellectual elements of careless and intentional forms of guilt. The decisive role in their differentiation belongs to the volitional element. If there is a sign of awareness of the actual nature and social danger of actions (inaction), foreseeing the possibility of socially dangerous consequences, reluctance to cause death can only be evidenced by the active behavior of the perpetrator, aimed at preventing it, or by real grounds for the person’s delusion regarding the possibility of avoiding the consequences. In the case when a person does not interfere in the development of a dangerous situation he has created and evades its resolution, we can talk about his indifference to the occurrence of death or his conscious admission, i.e. - about murder with indirect intent.
3. The subject of this crime is a person who has reached the age of 16 years.
4. Causing death by negligence as a result of improper performance by a person of his professional duties (Part 2) is committed in cases where a person does not comply with the instructions or requirements imposed on him when carrying out professional activities (performing professional functions). Causing death by negligence to two or more persons (Part 3) may consist of one action (simultaneous causing of several deaths) or sequential causing of death to two or more persons.
5. Causing death by negligence should be distinguished from innocent causing of harm (Article 28 of the Criminal Code).
What is causing death by negligence?
The main feature that allows us to distinguish Article 109 of the Criminal Code of the Russian Federation from other offenses is the subjective side of the crime, that is, the form of guilt. In the case of Art. 109 of the Criminal Code, it can only be in the form of negligence (frivolity or negligence).
When committing an act, the culprit foresees that as a result of his actions (inaction) a person’s death may occur, but arrogantly hopes to prevent it (guilt in the form of frivolity), or does not foresee, but due to the circumstances of the case should and could have foreseen (criminal negligence).
A typical and widely encountered example in practice of causing death by negligence, qualified under Article 109 of the Criminal Code of the Russian Federation, is the situation when, during the work of cutting down trees, safety rules are violated, as a result of which a heavy trunk falls on a passerby or a team worker, causing fatal injuries.
The subject of the crime we are considering can be a sane person who has reached the age of 16 years.
Third commentary to Article 109 of the Criminal Code of the Russian Federation
1. The legislator, quite rightly, did not include this crime among murders. Its severity does not allow us to talk about deliberately causing death. In this case, we are talking about the careless or frivolous behavior of the perpetrator, as a result of which the death of another person is caused. Such grave consequences are the result of gross indiscipline, carelessness and inattention of the perpetrator. With frivolity, we are faced with the fact that the culprit acts more dangerously; he deliberately violates certain rules, instructions, and takes unjustified risks. If the dangerous behavior of a person is carried out consciously, but the perpetrator acts at random, counting on sudden luck, and allows indifference to the consequences of his dangerous behavior, then we must talk about indirect intent, i.e. about a deliberate crime. The negligence with which the perpetrator acts must be distinguished from an incident of innocent causing of death, when the perpetrator foresaw the possibility of causing death to another person, but took all necessary measures to prevent it, and the death occurred for reasons beyond his control, or the person did not foresee the death, could not and should not have foreseen it.
2. When qualifying cases of death by negligence (Article 109 of the Criminal Code), it is necessary to remember about related elements, which also deal with negligence as the cause of death (Articles 124, 143, 215 - 217 of the Criminal Code, etc.).
In the first case, causing death is the result of a gross violation of the normal rules of precaution in everyday life or on vacation. It is recognized that the culprit acted inattentively, carelessly, and frivolously. The legislator also provided for such behavior in the event of improper performance of one’s professional duties (Part 2 of Article 109 of the Criminal Code), which resulted in death due to negligence. In the second case, we are talking about special rules that provide for these consequences in case of violation of any instructions, rules in specific areas of activity (labor safety rules, fire safety) or as a result of failure to fulfill or improper performance of their duties by the so-called special subject (negligence of an official - Article 293 of the Criminal Code of the Russian Federation). Such an act is recognized as the most dangerous in the event of death caused by negligence of two or more persons (Part 3 of Article 109 of the Criminal Code). It seems that such consequences should occur simultaneously, and not follow one after another. ‹ Article 108. Murder committed by exceeding the limits of necessary defense or by exceeding the measures necessary to apprehend the person who committed the crimeUp Article 110. Incitement to suicide ›
Acquittal of a doctor after the death of a patient
We tell you the details of the trial under Part 2 of Art. 109 of the Criminal Code of the Russian Federation “Causing death by negligence.”
In this material, we complete the study of the topic raised in the article “Causing death by negligence by a health worker”
, and we will dwell in more detail exclusively on
the Cassation ruling of the Fifth Cassation Court of General Jurisdiction dated May 14, 2020 No. 77-264/2020
.
In the city of Stavropol, a general practitioner, sentenced to restriction of freedom for a period of two years under Part 2 of Art. 109 of the Criminal Code of the Russian Federation for causing the death of a patient through negligence, a little less than a year later he was acquitted by the cassation court for lack of corpus delicti. There are still very few such cases in the practice of Russian courts. We have analyzed the texts of court decisions and invite you to familiarize yourself in detail with how this trial proceeded.
The story began on November 18, 2021, when the emergency medical service station in Stavropol received a call from a patient complaining of pain and numbness in his arm. During the examination, the patient was diagnosed with “Hypertension stage 3, degree 3, risk 4. Hypertensive crisis complicated. “Hypertensive encephalopathy,” he was taken to the emergency department of the City Clinical Hospital of the Emergency Medical Service. On the same day, a general practitioner examined the patient, diagnosed him with “Hypertension stage 2, degree 3, risk 4” and gave recommendations for treatment at a local clinic, without examining or hospitalizing him.
The next day, November 19, the ambulance station received a second call (the reason was “paralyzed”), after which the team hospitalized the patient to the regional clinical hospital. Four days later, on November 23, in the intensive care unit of the hospital, due to the extent of the ischemic stroke of the left hemisphere and the unfavorable premorbid background - type 2 diabetes mellitus, stenosing atherosclerosis of the cerebral arteries with a narrowing of the lumen of the vessels up to 70%, the patient developed edema and dislocation of the brain with herniation of the brainstem foramen magnum and death occurred (diagnoses and cause of death are given in accordance with the text of the court decision).
The Industrial District Court of the city of Stavropol came to the conclusion that the general practitioner was negligent, i.e. not foreseeing the possibility of socially dangerous consequences of his inaction, he did not promptly hospitalize the patient, who needed observation, additional examination and therapeutic treatment, to the hospital, as a result of which the patient developed edema and dislocation of the brain with wedging of the trunk into the foramen magnum, which led to of death. Although, with the necessary care and foresight, the doctor should and could have foreseen the development of complications of a hypertensive crisis in the patient in the form of acute coronary syndrome, acute left ventricular failure, heart attack and stroke. By the verdict of the district court dated August 09, 2019, in case No. 1-181/2019, the emergency department doctor, general practitioner, was convicted under Part 2 of Art. 109 of the Criminal Code of the Russian Federation to restriction of freedom for a period of 2 years with the establishment of appropriate restrictions.
By appeal ruling of the Stavropol Regional Court dated November 29, 2019 in case No. 22-5690/2019
the verdict was changed: the doctor was released from the imposed punishment due to the expiration of the statute of limitations for criminal prosecution. The rest of the verdict was left unchanged - the doctor was found guilty of causing the death of a patient through negligence due to improper performance of his professional duties.
In the cassation appeal, which was considered in the Fifth Cassation Court of General Jurisdiction
, the doctor’s lawyer, among other arguments, drew attention to the fact that “the conclusions of the experts when drawing up the conclusion ... contradict each other, the opinions of the experts differed, which is confirmed by the dissenting opinion of the chief cardiologist ..., a doctor of the highest category ... that on November 18, 2021 ... there were no indications for emergency hospitalization: there were no manifestations of a hypertensive crisis and its complications - acute cerebrovascular accident according to CT scan of the brain, signs of acute coronary syndrome according to ECG. The actions of the emergency department physician... during the examination... were correct. ... in court he confirmed his dissenting opinion and testified that ... the doctor did even more than he could: he called a neurologist, who examined him, did a computed tomography scan, which did not reveal any complications. There was no need or opportunity to hospitalize... The general practitioner could not know what would happen in a day or a week. ... The doctor’s procedure ... complied with the requirements of the hospital administration and the job description. There is no cause-and-effect relationship between actions... and death...
... The court did not take into account that ... treatment of a patient with an uncomplicated hypertensive crisis can be carried out on an outpatient basis. Indications for emergency hospitalization are only: hypertensive crisis, not controlled at the prehospital stage; hypertensive crisis with severe manifestations of hypertensive encephalopathy; complications of hypertension requiring intensive care and constant medical supervision (stroke, subarachnoid hemorrhage, acute visual impairment, pulmonary edema, etc.), which were absent in ... November 18, 2021.
... The conclusions of the courts of first and appellate instances about the occurrence of death ... due to the fact that ... the doctor did not hospitalize ... are assumptions ... ".
Thus, the defense focused on the following main points:
- inconsistency of expert conclusions in the conclusion;
- the presence of a special opinion of an experienced cardiologist that there were no indications for emergency hospitalization, and the general practitioner did even more than was required of him, and could not know what would happen to the patient in a few days;
- treatment of such diseases can be carried out on an outpatient basis;
- The conclusions of the courts of first and appellate instances about the causal relationship between the act and the death of the patient are assumptions.
After listening to the participants in the process, checking the arguments of the cassation appeal and the materials of the criminal case, the judicial panel noted that, according to expert opinions:
- at the time of examination by a general practitioner, the patient required hospitalization in a hospital for observation, further examination and therapeutic treatment;
- the doctor’s actions in connection with non-hospitalization are in a direct cause-and-effect relationship with the patient’s death.
However, despite what is stated in the text of the conclusions, the court made a fundamentally important conclusion that “the establishment of a cause-and-effect relationship between the committed act and its criminal consequences is the exclusive right of the court, therefore expert opinions in this part are unacceptable for establishing guilt.”
.
The Court of Cassation noted that the verdict of the court of first instance stated that the doctor’s actions in connection with the patient’s non-hospitalization to the hospital were in a direct cause-and-effect relationship with death, since the patient’s hypertension with severe encephalopathy was an indication for hospitalization. However, he immediately noted that the causal relationship between non-hospitalization and death
which occurred a few days later, “was carried out by the court with a significant violation of the provisions of the criminal and criminal procedural law,
is an assumption, since the court did not exclude events and circumstances that, after examination ... could worsen the state of health ... for other reasons, the possibility of death ... in the event her hospitalization on November 18 ... did not establish that death ... would not have occurred had she been hospitalized
.”
The fact that the doctor was convicted on assumptions is confirmed by the expert opinion underlying the verdict, which directly states that if the patient was hospitalized
in a hospital on November 18,
death was conditionally preventable, that is, it was not excluded
. To sum it all up, the court of Fr.
In addition, the court additionally drew attention to the fact that the arguments and evidence of the defense (testimony of several witnesses that the general practitioner properly fulfilled the duties of a doctor in the hospital’s emergency department in relation to the patient, whose hospitalization in this situation was not mandatory) were rejected by the trial court in fact only because they contradicted the incriminating evidence.
Based on the foregoing, the cassation court came to the conclusion that these significant violations of the criminal procedure law influenced the outcome of the case and led to the erroneous recognition of the doctor as guilty of committing a crime. As a result, the verdict and the appeal decision were canceled, and the criminal proceedings were terminated under paragraph 2 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation for the absence of corpus delicti in the doctor’s actions.
Qualified legal assistance will help minimize the punishment!
Death due to negligence is difficult to anticipate or predict. Often, one wrong move or action can cause death. Persons who find themselves in a difficult life situation and who require qualified assistance and legal support in order to represent the interests of the accused or injured party in court are advised to contact lawyers specializing in cases involving a crime against life and health.
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