According to Art. 20 of the Constitution of the Russian Federation, every person has the right to life. If a person is deprived of life, even when it happened through negligence, then the guilty person must bear responsibility for this.
Causing death by negligence is prescribed in Article 109 of the Criminal Code of the Russian Federation. What threatens a person who, by accident or carelessness, takes the life of another person?
What is the difference between murder and causing death by negligence?
Criminal liability under Art. 109 of the Criminal Code of the Russian Federation: punishment
For causing death by negligence, one of the following types of punishment is provided:
- correctional labor for up to 2 years;
- restriction of freedom for up to 2 years;
- forced labor for up to 24 months;
- imprisonment for up to 2 years.
If the death occurs as a result of poor performance by an official of his duties (for example, medical negligence, construction negligence, etc.), then the culprit will face one of the following penalties:
- restriction of freedom for up to 3 years;
- forced labor for up to 3 years and deprivation of the right to hold a previous position or without such a right;
- imprisonment for up to 3 years with restriction of the right to continue working in the same position or without restriction on this right.
If, as a result of careless actions, death occurs in two or more persons, then the perpetrator may face one of the following types of punishment:
- restriction of freedom for up to 4 years;
- forced labor for up to 4 years;
- imprisonment for a term of up to 4 years with deprivation of the right to engage in a certain type of activity or without deprivation of such a right.
There is a fine line between murder and causing death by negligence . If the criminal had the intent to take the life of another person, then he will be convicted under Art. 105 of the Criminal Code of the Russian Federation “Murder”. If he did not want to kill, then he faces Art. 109 of the Criminal Code of the Russian Federation.
Causing death by negligence is due to thoughtlessness or negligence. Accordingly, the person committing such an act does not have direct intent.
Judicial practice in relation to cases falling under Art. 109 of the Criminal Code of the Russian Federation, most often associated with death due to negligence in an accident, as well as with the infliction of bodily harm resulting in the death of a person (people).
For example, a car driver did not let a motorcyclist pass. As a result, the motorcyclist collided with a car, the motorcycle driver was thrown out and died on the spot.
Special formulations
Article 109 of the Criminal Code “Causing death by negligence” is the so-called general rule. That is, it punishes all careless actions or inactions that led to the death of the victim, with the exception of those specific actions/inactions that are prohibited by individual articles. Such norms are called special.
In other words, everything that is not prohibited by special rules, but through negligence resulted in the death of the victim, is punishable under Art. 109. If the Criminal Code contains an article prohibiting specific actions/inactions that resulted in the death of another person, this special article is applied. Most often, death in these norms is prescribed as an aggravating circumstance, and therefore a punishment.
There are quite a few such articles in the Criminal Code. In them, the death of the victim, which occurred as a result of the negligence of the perpetrator, can be specifically named as an aggravating circumstance . These are, for example, the following fairly common articles:
- Part 4 Art. 111 – intentional infliction of grievous bodily harm;
- clause "a" part 4 art. 131 – rape;
- clause "a" part 4 art. 132 – sexual acts committed against the will of the victim;
- Parts 2 and 3 art. 143 – violation of labor protection rules;
- Part 2 Art. 167 – destruction of property;
- Part 2 Art. 215.1 – termination, limitation of electricity supply, disconnection from other facilities important for life support;
- Parts 2 and 3 art. 219 – violation of fire safety rules;
- Art. 224 – careless storage of firearms;
- clause “c”, part 3 and part 4 of Art. 238 - turnover of goods and services that do not meet safety requirements - under this article, in particular, persons who sold counterfeit, surrogate alcohol are responsible;
- Part 4-6 tbsp. 264 – violation of traffic rules (traffic rules) and the use of vehicles – this article punishes, in particular, drivers who hit pedestrians;
- Part 2-3 tbsp. 293 – negligence and many other articles of the Criminal Code.
In addition, death, which was caused by negligence by the actions/inaction of the perpetrator, may not be specifically named, but classified as “other grave consequences . Among the most common articles:
- Part 3 Art. 285 – abuse of power;
- clause "c" part 3 art. 286 - abuse of power and other articles of the code.
Cases qualified as malfeasance under the above standards may occur, for example, on the part of law enforcement officers vested with authority over citizens, including the use of force and special means.
Examples of death caused by negligence in 2021
In order to understand what causing death by negligence is, let's look at the following examples:
Example 1
During construction work, a worker accidentally dropped a brick.
As a result of the falling brick, a person who was just passing by at that moment was injured.
The blow was so strong that the victim lost consciousness and suffered a traumatic brain injury.
The next day, without regaining consciousness, the victim died in the hospital.
Example 2
The mother was bathing the child in the bath, but suddenly she needed to step away for a minute. The child was left alone in the bathroom. The baby slipped in the bathroom and fell and was unable to get up.
Returning to the child, the mother found him dead. In this case, she faces punishment under Art. 109 “Causing death by negligence.”
Example 3
A drunk man, smoking in bed with a cigarette, fell asleep. As a result, a fire started that took the lives of other family members.
Example 4
While hunting a wild boar, the hunter fired a shot at an unclear target, believing that there was an animal behind the trees (shrubs).
As a result, the bullet hit a man who was walking between the trees and looking for mushrooms.
As a result of the shot, the man died on the spot.
Example 5
The friends were drinking alcohol, and during the feast, one of them accidentally pushed his friend with his hand. He fell to the floor and hit his head on the corner of the table, resulting in a traumatic brain injury. The police arrived and pronounced him dead.
Example 6
My father brought home mushrooms of unknown origin. The whole family dined on cooked mushrooms.
At night the children became ill and were taken to the hospital. They took the victims straight to intensive care, but the children died a few minutes later.
Example 7
While performing a medical procedure, due to improper performance of his professional duties, the anesthesiologist damaged the patient's lung with a catheter.
As a result of his actions, the woman died on the spot.
The doctor in this case is the guilty party.
Example 8
The driver of the truck, transporting logs, lost control. As a result, the car overturned, and logs fell out and killed two pedestrians passing by. The truck driver faces punishment under Art. 109 of the Criminal Code.
Example 9
A policeman on duty decided to check whether his pistol was on safety or not. As a result, he inadvertently fired a shot, hitting his colleague. He died from his injuries in the hospital.
In all these cases, the perpetrators had no intent to kill. But according to the laws of the Russian Federation, people who cause death through negligence are criminals.
In order for the culprit to be punished under Art. 109 of the Criminal Code of the Russian Federation, the investigation needs to find out the degree of guilt of the criminal.
It also happens that no one is responsible for the death of a person. For example, a brick fell from a balcony and a person passing nearby died from its impact.
In this case, the question is: “Against whom should a criminal case be initiated?” is controversial.
The owner of the apartment on whose balcony the unfortunate brick lay is innocent because he did not know that the brick could somehow fall and cause the death of a person.
Causing death by negligence is a concept and a term of Anglo-Saxon origin. In Russian criminal law it was better known as reckless murder.
The history of the emergence of punishment for careless murder dates back to the legislative acts of medieval Rus'. However, the first acts: the Russian Law and the Russian Truth (both short and lengthy editions) did not distinguish intentional murder from careless murder, or criminal untruth from civil untruth [1].
The identification of careless murder as an independent crime occurs in the Council Code of 1649, (Chapter XXIV DECREE FOR WHAT GUILTY WHAT IS THE DEATH PENALTY, AND FOR WHAT GUILTY DEATH IS NOT EXECUTED, BUT PUNISHMENT) in Article 18: “If such a murder is committed from anyone without intent, because the horse is frightened and breaks the bridle, and it will be impossible to restrain it, do not charge him with murder, and do not inflict punishment on anyone for such a thing, so that such a thing will be done without cunning.
And article 20: If someone shoots with a squeak, or with a bow at an animal, or at a bird, or according to a sign, and an arrow or a bullet floats up and kills someone behind a mountain, or behind a town, or someone kills someone according to some custom before death by wood, or by stone, or by anything other than a deliberate act, but no unfriendship or enmity in advance between the one who kills and the one he kills, and it is clear that such a murder was committed inadvertently, without premeditation, and for such a murder, do not put anyone to death, and do not put anyone in prison, because such a thing is committed by a sinful deed without intent”[2].
After the Council Code, careless murder, as an independent crime, can be traced in all subsequent criminal legal acts.
More stringent than the Code of 1649 were the laws approved by Peter I - the Military Article (1715) and the Naval Charter (1720). Here, more than 100 crimes were punishable by death, of which in 74 cases the death penalty, including for murder, was an absolutely definite sanction. It was stipulated that all murderers and those “intending” to murder would be executed by death. It follows from this that the death penalty extended not only to completed murder, but also to attempt, preparation and detection of intent to commit this crime. At the same time, it was emphasized that unintentional and unintentional murder, when “no guilt is found,” is not subject to punishment. Even then, the Article clearly distinguished between intent, negligence and chance, including in the case of murder. Murder by negligence (“inadvertently and unwittingly”) was punishable by prison, fine or spitsruten.[3]
During the reign of Catherine II in 1754 and 1766, commissions were created to prepare the Criminal Code. The draft Code also contained norms related to crimes against life. The following were provided: 1) premeditated murder as an act of will, committed on purpose and without need; 2) careless murder, committed unintentionally and not with intent, but when the killer is guilty of the fact that it happened through negligence; 3) accidental murder - a very unintentional and unintentional killing in which no guilt is seen. In the latter case, liability should not have arisen.
Subsequently, the Code of Criminal Laws of 1832 (which came into force in 1835) divided the types of murders even more specifically. So, with regard to murder by negligence, there were two types: firstly, when a person could foresee illegal consequences, and, secondly, when a person committed actions that were not prohibited by law, but should have been careful or could have foreseen such consequences. Careless murder was punished “according to the degree of negligence” by imprisonment, or a fine, or corporal execution, and in all cases the perpetrator was subjected to church repentance (Article 336).
The following stood out: murder in a fight, which was regarded as careless if intent was not established (Article 337); causing death due to the use of improper medicine by a pharmacist or doctor, which also referred to murder by negligence (Article 344).
The Penal Code of 1903 provided for various options for acts and liability for causing death by negligence: beating without intent to kill, resulting in the death of the victim, was punishable by imprisonment for a term of eight months to two years; committing an action not prohibited by law, from which consequences cannot be expected, but which is clearly careless, resulting in death by negligence, is punishable by a term of two to four years or by arrest for a term of three days to three months; committing an act that resulted in the unexpected death of the victim was punishable by imprisonment for a term of two to four months. For each of the three above acts, Christians were entitled to church repentance (vv. 1464, 1465, 1468).
The Penal Code was actually in force until 1917.
Immediately after the October Revolution, the RCP(b) and the Soviet government scrapped all the judicial institutions and legal institutions of Tsarist Russia. This also applied to the legislation on crimes against life and to the procedure for the investigation and trial of cases of these crimes. District people's courts and revolutionary tribunals were formed, to whose jurisdiction cases of this category were transferred. The courts were allowed to be guided by the laws of the overthrown governments, “since they were not repealed by the decrees of the All-Russian Central Executive Committee and the Council of People's Commissars and do not contradict the socialist sense of justice”[4].
Responsibility for crimes encroaching on life was established in Chapter 5 of the Criminal Code “Crimes against life, health, freedom and dignity of the individual.” In section 1 “Murder”, “Careless murder” was highlighted (Article 147). The said article distinguished two types of careless murder: according to Part 1 of Article 147 of the Criminal Code, careless murder was punishable by imprisonment or correctional labor for up to 1 year; in Part 2 of Art. 147 provided for careless murder, which was the result of a deliberate failure to comply with the rules of precaution. It was punishable by imprisonment for up to 3 years. In addition, the court could prohibit the convicted person forever or for a certain period from the activity in which he caused death. A comparison of Part 1 and Part 2 of this article shows that Part 1 provided for liability for reckless homicide by negligence, when a person did not foresee the possibility of causing death to the victim, although he should have and could have foreseen it, and in Part 2 - for careless murder as a result of criminal arrogance, when a person foresaw the possibility of the death of the victim as a result of his action or inaction, but thoughtlessly hoped to prevent it.
The Criminal Code adopted in 1934 contained a similar provision. The only change was that the penalty for reckless homicide was increased to 3 years in prison.
Before the adoption of the Criminal Code of the Russian Federation, this crime was regulated by Article 106 of the Criminal Code of the RSFSR (Careless Murder), which consisted of only one part and read: Murder committed through negligence is punishable by imprisonment for up to three years or correctional labor for up to two years.
Article 106 of the Criminal Code of the RSFSR (careless murder) provides for a more lenient punishment compared to the current Article 109 of the Criminal Code of the Russian Federation.
Unlike Art. 106 of the Criminal Code of the RSFSR of 1960, which spoke of murder committed by negligence, the legislator in Art. 109 of the 1996 Criminal Code of the Russian Federation avoids the very term “murder” and speaks of “causing death by negligence.” And this has a deep meaning.
In the theory of Soviet criminal law, there were two polar points of view regarding the definition of murder. Thus, A. A. Piontkovsky believed that murder is the unlawful intentional or careless deprivation of human life[5]. M.D. Shargorodsky understood murder only as the intentional infliction of death and did not include careless deprivation of life among it[6].
The second point of view was accepted by the current Russian criminal legislation and seems to us more perfect and accurate. The Criminal Code of the Russian Federation defines murder as intentionally causing the death of another person. Unintentional, that is, careless murder of the Criminal Code of the Russian Federation is rejected and recognized as causing death by negligence - Article 109 of the Criminal Code of the Russian Federation.
So, by causing death by negligence we mean the careless (by thoughtlessness or negligence) deprivation of the life of another person.
Thus, causing death by negligence, which is similar to murder due to the criminal result of death, differs primarily in the form of guilt.
The object of causing death by negligence, as in murder, is human life, which, regardless of the social, physiological, criminological and other characteristics of the individual, is equally protected by criminal law. A person’s life is counted from the beginning of physiological childbirth until the natural death of a person, his biological death, when, following cardiac arrest, blood flow, oxygen supply to brain cells and irreversible processes in it cease. Establishing the moment of the beginning of life and the onset of death has important legal significance, since, for example, an attempt on the fetus can be considered as causing harm to the health of a pregnant woman, and an attack on a corpse when mistaking it for a living person constitutes an attempted murder. Thus, setting “boundaries” in life is important. In the modern period, this is also an important legal, ethical and medical problem, since cases of human organ transplantation are being used in cases of so-called clinical death, when the potential opportunity to “revive” the heart and bring a person back to life has not been exhausted.
From the objective side, causing death by negligence can be committed both through action and inaction. Actions in this case can be expressed in the direct physical impact of the perpetrator on the victim (wounding, poisoning, etc.).
It should be borne in mind that causing death by negligence can be carried out either by directly causing physical harm, expressed in violating the anatomical integrity of the body, or by causing such harm using tools or various mechanical means (an axe, a gun, a car, etc.).
Death can also be caused by inaction. This is possible if the perpetrator is specifically charged with the duty to prevent the infliction or occurrence of death (of a mother in relation to a newborn child, a driver in relation to other road users, a doctor in relation to a patient and any person if his life is in danger, etc.). Such an obligation may be imposed on the perpetrator by law, by-laws, customs (traditions) or assumed responsibilities.
The subjective side of causing death by negligence is complex. An example is death caused by negligence in the use of technology. This primarily applies to transport crimes (analysis of statistical data from various sources indicates 75% of all careless crimes). Various combinations of mental attitudes to violations of traffic safety rules, on the one hand, and to their consequences, on the other, the discussion about the possible number of such combinations indicate the complex, internally heterogeneous nature of the mental attitude to the crime. A single, homogeneous form of guilt is quite rare in judicial practice (usually in the form of criminal negligence). Most often, this form of guilt has many combinations, combining both intentional violation of the rules and careless guilt in relation to the consequences specified in the law. Thus, in qualified crimes, the parallel coexistence of two forms of guilt is possible: intent in relation to the actions performed and negligence in relation to the qualifying consequences. At the same time, it is necessary to exclude the possibility of interpreting as a “mixed form of guilt” a combination, along with various forms, of different types of one form of guilt, since in the latter case it is not possible to find differences in the mental attitude to the deed.
The resolution of the Plenum of the Supreme Court of the USSR dated October 6, 1970 “On judicial practice in cases of motor transport crimes” indicated that such crimes “should be considered as committed through negligence, since the subjective side of these acts is determined by the careless attitude of a person to the possibility of socially dangerous consequences when violation of traffic safety rules or operation of vehicles.”[7]
[1] Borodin S.V. Crimes against life - M.: Yurist. – 1999. – p.18.
[2] Council Code of 1649 // Reader on the history of state and law. Ed. Chistyukova O.I. – M. 1999.
[3] Borodin S.V. Crimes against life. – M.: Yurist, 1999. – pp. 20-21.
[4] History of the legislation of the USSR and the RSFSR on criminal proceedings and the organization of the court and prosecutor’s office: Coll. documents. M., 1955. – p. 43-44.
[5] Piontkovsky A. A. Course of Soviet criminal law. - M.: 1971. T. V. - P. 21.
[6] Shargorodsky M.D. Crimes against life and health. - M.: 1948. - P. 194.
[7]Collection of decisions of the Plenum of the Supreme Court of the USSR (1924-1977). M., 1978. Part 2. P. 284.
Intentional infliction of grievous bodily harm resulting in death through negligence
A completely different article is provided if, for example, there was a fight and its consequence was the death of the victim. In this case, the culprit will follow Art. 111 of the Criminal Code of the Russian Federation “Causing grievous harm to health.”
Paragraph 4 of this article states that a person who committed actions in which there was a deliberate infliction of grievous harm to human health, which soon resulted in the death of the victim, must be punished by imprisonment for a term of up to 15 years with restriction of freedom for a period of up to 24 months or without such restrictions.
Another comment on Art. 109 of the Criminal Code of the Russian Federation
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 by a person of professional duties (for example, Part 2 of Article 143, Part 2 of Article 216 of the Criminal Code of the Russian Federation), a special norm is subject to application.
How to prove that death occurred as a result of negligence?
In order for the perpetrator not to face punishment in the form of imprisonment for murder, he needs to prove that the death of the victim was accidental, committed through negligence.
To do this, it is necessary to find witnesses who are ready to confirm that the damage was not inflicted with the aim of taking the life of another person.
If there is video evidence, for example, a recording from a phone or video from a CCTV camera, then it is imperative to present it in court.
The statute of limitations for crimes under Art. 109 of the Criminal Code of the Russian Federation
The perpetrator is released from liability if 6 years have expired from the date of the unintentional death due to negligence. Death by negligence is classified as a crime of medium gravity.
For manslaughter, the perpetrator may face punishment in the form of correctional, forced labor or restriction of freedom for up to 2 years. Responsibility for such punishment is prescribed in Article 109 of the Criminal Code of the Russian Federation.
In order to prove that the death of the victim was due to negligence, the perpetrator must present evidence in court.
Jurisdiction
According to the current law, carrying out checks on reports of crimes under Art. 109 of the Criminal Code of the Russian Federation and the investigation of criminal cases under it is carried out by investigators of the territorial departments of the Investigative Committee of the Russian Federation at the place where this incident occurred.
They also carry out verification activities and investigations according to a significant number of special norms, where one of the conditions of liability or an aggravating feature is the death of the victim due to the negligence of the perpetrator. This is, for example, Art. 131, 132, 143, 238, 285, 286, 293.
A preliminary investigation according to special norms of the Criminal Code is also carried out by units of other law enforcement agencies according to the rules established by Art. 150-151 Code of Criminal Procedure of the Russian Federation. For example, cases under Art. 111, 167, 264 and others are being investigated by investigators from the Ministry of Internal Affairs. Cases under some articles are investigated by police investigators, for example, under Art. 224.
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