Official website of the Supreme Court of the Russian Federation
RESOLUTION
PLENARY OF THE SUPREME COURT
RUSSIAN FEDERATION
№ 1
Moscow January 27, 1999
On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)
(as amended by resolutions of the Plenum dated February 6, 2007 No. 7, dated April 3, 2008 No. 4, dated December 3, 2009 No. 27 and dated March 3, 2015 No. 9)
In order to ensure the correct application of legislation providing for liability for intentionally causing the death of another person, the Plenum of the Supreme Court of the Russian Federation decides to give the following clarifications to the courts:
1. When considering cases of murder, which is a particularly serious crime, for the commission of which it is possible to impose the most severe punishment provided for in Art. 44 of the Criminal Code of the Russian Federation of types of punishments, courts are obliged to strictly comply with the requirement of the law for a comprehensive, complete and objective study of the circumstances of the case.
In each such case, the form of guilt must be established, the motives, purpose and method of causing the death of another person must be clarified, as well as other circumstances that are important for the correct legal assessment of the crime and the imposition of a fair punishment on the perpetrator must be examined.
2. If murder can be committed with both direct and indirect intent, then attempted murder is possible only with direct intent, that is, when the act indicated that the culprit was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability the death of another person and wanted it to happen, but the death did not occur due to circumstances beyond his control (due to the active resistance of the victim, the intervention of other persons, timely provision of medical care to the victim, etc.).
3. It is necessary to distinguish murder from the intentional infliction of grievous bodily harm resulting in the death of the victim, bearing in mind that in the case of murder the intent of the perpetrator is aimed at depriving the victim of life, and when committing a crime under Part 4 of Art. 111 of the Criminal Code of the Russian Federation, the attitude of the perpetrator towards the death of the victim is expressed in negligence.
When deciding the direction of the intent of the perpetrator, one should proceed from the totality of all the circumstances of the crime and take into account, in particular, the method and weapon of the crime, the number, nature and location of bodily injuries (for example, injuries to vital organs of a person), as well as the previous crime and subsequent behavior of the perpetrator and the victim, their relationship.
4. According to Part 1 of Art. 105 of the Criminal Code of the Russian Federation qualifies murder committed without the qualifying features specified in Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and without mitigating circumstances provided for in Art. Art. 106, 107 and 108 of the Criminal Code of the Russian Federation (for example, in a quarrel or fight in the absence of hooligan motives, out of jealousy, motivated by revenge, envy, hostility, hatred, arising on the basis of personal relationships).
5. In accordance with the provisions of Part 1 of Art. 17 of the Criminal Code of the Russian Federation, the murder of two or more persons, committed simultaneously or at different times, does not form a set of crimes and is subject to qualification under paragraph “a” of Part 2 of Article 105 of the Criminal Code of the Russian Federation, and if there are grounds for this, also under other points of Part 2 of this article, provided that the perpetrator has not previously been convicted of any of these murders.
The murder of one person and the attempted murder of another cannot be considered a completed crime - the murder of two persons. In such cases, regardless of the sequence of criminal actions, the act should be qualified under Part 1 or Part 2 of Art. 105 and according to Part 3 of Art. 30 and paragraph “a”, part 2, art. 105 of the Criminal Code of the Russian Federation.
6. According to paragraph “b” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation qualifies the murder of a person or his relatives, committed with the aim of preventing the person from lawfully carrying out his official activities or fulfilling a public duty, or for reasons of revenge for such activities.
The performance of official activities should be understood as the actions of a person included in the scope of his duties arising from an employment agreement (contract) with state, municipal, private and other duly registered enterprises and organizations, regardless of the form of ownership, with entrepreneurs whose activities do not contradict the current legislation, and under the fulfillment of public duty - the implementation by a citizen of both the duties specifically assigned to him in the interests of society or the legitimate interests of individuals, and the commission of other socially useful actions (suppression of offenses, reporting to authorities about a committed or impending crime or about the whereabouts of a wanted person in connection with the commission of offenses, giving evidence by a witness or victim incriminating a person in committing a crime, etc.).
Persons close to the victim, along with close relatives, may include other persons who are related to him or her (relatives of the spouse), as well as persons whose life, health and well-being are known to the perpetrator to be dear to the victim due to established personal relationships.
7. According to paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation (murder of a minor or another person known to be in a helpless state by the perpetrator) should qualify the intentional infliction of death on a victim who is unable, due to a physical or mental state, to defend himself or to provide active resistance to the perpetrator, when the latter, while committing the murder, is aware of this circumstance. Other persons in a helpless state may include, in particular, seriously ill people, the elderly, and persons suffering from mental disorders that deprive them of the ability to correctly perceive what is happening.
When qualifying the actions of the perpetrator under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on the basis of “murder associated with kidnapping or hostage-taking”, it should be borne in mind that, within the meaning of the law, liability under this paragraph of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is punishable not only for intentionally causing the death of the kidnapped person or hostage, but also for the murder of other persons committed by the perpetrator in connection with the kidnapping or hostage-taking. The act must be qualified in conjunction with the crimes provided for in Art. 126 or art. 206 of the Criminal Code of the Russian Federation.
8. When qualifying a murder under clause “d”, part 2 of 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.). 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.
9. A generally dangerous method of murder (clause “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation) should be understood as a method of intentionally causing death, which the perpetrator knows to pose a danger to the life of not only the victim, but at least one other person (for example, by explosion, arson, firing shots in crowded places, poisoning water and food that other people besides the victim use).
If, as a result of the generally dangerous method of murder used by the perpetrator, the death of not only a certain person, but also other persons, occurred, the act must be qualified, in addition to paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, under paragraph “a”, part 2 of Art. 105 of the Criminal Code of the Russian Federation, and in case of harm to health of other persons - under paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and under articles of the Criminal Code of the Russian Federation providing for liability for intentional infliction of harm to health.
In cases where murder by explosion, arson or other generally dangerous method is associated with the destruction or damage of someone else’s property or with the destruction or damage of forests, as well as plantings not included in the forest fund, the act committed, along with paragraph “e” of Part 2 Art. 105 of the Criminal Code of the Russian Federation, should also be qualified under Part 2 of Art. 167 or part 3 or part 4 of Art. 261 of the Criminal Code of the Russian Federation.
10. When qualifying murder under clause “g”, Part 2, Article 105 of the Criminal Code of the Russian Federation, it is necessary to take into account the definition contained in Article 35 of the Criminal Code of the Russian Federation of the concept of a crime committed by a group of persons, a group of persons by prior conspiracy and an organized group of persons.
Murder is recognized as committed by a group of persons when two or more persons, acting together with intent aimed at committing murder, directly participated in the process of taking the life of the victim, using violence against him, and it is not necessary that the injuries leading to death were caused by each of them ( for example, one suppressed the victim’s resistance, deprived him of the opportunity to defend himself, and the other inflicted fatal injuries on him). Murder should be recognized as committed by a group of persons even in the case when, in the process of one person committing actions aimed at intentionally causing death, another person (other persons) joined him for the same purpose.
A preliminary conspiracy to murder presupposes an agreement expressed in any form between two or more persons, which took place before the commencement of actions directly aimed at taking the life of the victim. At the same time, along with co-perpetrators of the crime, other members of the criminal group may act as organizers, instigators or accomplices of murder, and their actions should be qualified under the relevant part of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code of the Russian Federation.
An organized group is a group of two or more individuals united with the intent to commit one or more murders. As a rule, such a group carefully plans a crime, prepares murder weapons in advance, and distributes roles between group members. Therefore, when a murder is recognized as committed by an organized group, the actions of all participants, regardless of their role in the crime, should be qualified as co-perpetrator without reference to Art. 33 of the Criminal Code of the Russian Federation.
11. According to paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation (murder for mercenary motives) should qualify a murder committed with the aim of obtaining material benefits for the perpetrator or other persons (money, property or rights to receive it, rights to living space, etc.) or getting rid of material costs (refund property, debt, payment for services, fulfillment of property obligations, payment of alimony, etc.).
A murder caused by the receipt by the perpetrator of the crime of material or other reward should be classified as murder for hire. Persons who organized a murder for reward, instigated its commission or assisted in the commission of such a murder are liable under the relevant part of Art. 33 and paragraph “h”, part 2, art. 105 of the Criminal Code of the Russian Federation.
Murder in the process of committing these crimes should be classified as involving robbery, extortion or banditry. What was done in such cases is qualified under paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation in conjunction with articles of the Criminal Code providing for liability for robbery, extortion or banditry.
12. According to clause “i”, part 2 of Art. 105 of the Criminal Code of the Russian Federation should qualify murder committed on the basis of obvious disrespect for society and generally accepted moral norms, when the behavior of the perpetrator is an open challenge to public order and is caused by the desire to oppose himself to others, to demonstrate a disdainful attitude towards them (for example, deliberately causing death for no apparent reason or with using a minor reason as a pretext for murder).
If the culprit, in addition to murder for hooligan motives, committed other deliberate actions that grossly violated public order, expressed clear disrespect for society and were accompanied by the use of violence against citizens or the threat of its use, as well as the destruction or damage of other people’s property, then what he did should be qualified according to the law. "and" part 2 art. 105 of the Criminal Code of the Russian Federation and the corresponding part of Art. 213 of the Criminal Code of the Russian Federation.
To correctly distinguish between murder for hooligan reasons and murder in a quarrel or fight, it is necessary to find out who initiated it, and whether the conflict was provoked by the perpetrator to use it as a pretext for murder. If the instigator of a quarrel or fight was the victim, as well as in the case where the conflict was caused by his illegal behavior, the perpetrator cannot be held responsible for murder for hooligan motives.
13. Within the meaning of the law, qualification under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, the murder of a certain person committed by the perpetrator in order to conceal another crime or facilitate its commission excludes the possibility of qualifying the same murder, in addition to the specified paragraph, under any other paragraph of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, which provides for a different purpose or motive for murder. Therefore, if it is established that the murder of the victim was committed, for example, for mercenary or hooligan motives, it cannot simultaneously be qualified under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.
Murder involving rape or violent acts of a sexual nature should be understood as murder in the process of committing these crimes or for the purpose of concealing them, as well as committed, for example, out of revenge for resistance provided during the commission of these crimes.
Considering that in this case two independent crimes are committed, the crime should be qualified under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and, depending on the specific circumstances of the case, under the relevant parts of Art. 131 or Art. 132 of the Criminal Code of the Russian Federation.
14, 15. Excluded by resolution of the Plenum of February 6, 2007 No. 7.
16. Within the meaning of the law, murder should not be regarded as committed with the qualifying criteria provided for in paragraphs. “a”, “d”, “e” part 2 art. 105 of the Criminal Code of the Russian Federation, as well as in circumstances that are usually associated with the idea of special cruelty (in particular, multiple injuries, murder in the presence of persons close to the victim), if it was committed in a state of sudden strong emotional disturbance or when the limits of necessary defense were exceeded.
17. Murder committed with the qualifying criteria provided for by two or more paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation must qualify on all these points. Punishment in such cases should not be imposed on each point separately, however, when assigning it, it is necessary to take into account the presence of several qualifying criteria.
In cases where the defendant is charged with committing murder with the qualifying criteria provided for in several paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and the charges on some of them were not confirmed, in the descriptive part of the verdict it is enough, with the appropriate motives, to formulate a conclusion that the charges on certain counts are recognized as unfounded.
18. The actions of an official who committed murder while exceeding his official powers should be qualified according to the totality of crimes provided for in Part 1 or Part 2 of Art. 105 and part 3 of Art. 286 of the Criminal Code of the Russian Federation.
Similarly, in conjunction with Part 2 of Art. 203 of the Criminal Code of the Russian Federation must qualify the actions of a manager or employee of a private security or detective service who committed a murder while exceeding the powers granted to him in accordance with the license, contrary to the objectives of his activities.
19. The murder of an employee of a place of deprivation of liberty or a place of detention or a convicted person in order to prevent his correction or out of revenge for the performance of his public duty, committed by a person serving a sentence of imprisonment or being held in custody, must be qualified, in addition to the relevant part of Art. 105 of the Criminal Code of the Russian Federation, under Art. 321 of the Criminal Code of the Russian Federation, which provides for liability for disruption of the normal activities of institutions that ensure isolation from society.
20. When assigning punishment for murder, it is necessary to take into account all the circumstances under which it was committed: the type of intent, motives and purpose, method, setting and stage of the crime, as well as the identity of the perpetrator, his attitude to the crime, circumstances mitigating and aggravating the punishment. Equally, data relating to the personality of the victim, his relationship with the defendant, as well as the behavior preceding the murder must be examined.
PARAGRAPH TWO EXCLUDED (by resolution of the Plenum of December 3, 2009 No. 27)
21. In each case of intentionally causing the death of another person, it is necessary to establish the causes and conditions that contributed to the commission of the crime, and, if there are grounds for this, respond to them in the manner prescribed by procedural law.
22. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 15 “On judicial practice in cases of premeditated murders” shall be declared invalid and the resolution of the Plenum of the Supreme Court of the USSR dated 27 shall be considered invalid on the territory of the Russian Federation June 1975 No. 4 “On judicial practice in cases of premeditated murder” and dated September 22, 1989 No. 10 “On the implementation by courts of the guidelines of the Plenum of the Supreme Court of the USSR when considering criminal cases of premeditated murder.”
Chairman of the Supreme Court
Russian Federation V.M.Lebedev
Secretary of the Plenum, judge
Supreme Court
Russian Federation V.V. Demidov
New resolution of the plenum of the Supreme Court of the Russian Federation “on judicial practice in cases of extortion”
On December 17, 2015, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 56 “On judicial practice in cases of extortion (Article 163 of the Criminal Code of the Russian Federation)” (2015 resolution), which invalidated the decisions of the Plenum of the Supreme Court of the Russian Federation dated May 4 1990 No. 3 “On judicial practice in cases of extortion” (resolution of 1990) and dated August 18, 1992 No. 10 “On the implementation by courts of the guidelines of the Plenum of the Supreme Court of the Russian Federation on the application of legislation on liability for extortion”, corrected some previously stated provisions and introduced novelties that deserve attention. In contrast to the invalidated resolution of 1990, the new resolution states that the nature of the public danger of the crime under Art. 163 of the Criminal Code of the Russian Federation is determined by the direction of the encroachment not only on property relations and other property relations, but also on the person (health, integrity, honor and dignity, other rights and legitimate interests) (clause 1).
The 1990 resolution dealt with the threat of disclosure of other information, the disclosure of which could harm the honor and dignity of the victim or his relatives. Consequently, the 2015 resolution not only draws attention to the protection of property relations and other property relations, but also places emphasis on the protection of individual rights.
The 2015 resolution especially emphasized the role of intent to obtain material benefit for oneself or other persons with which the guilty person acts in extortion (clause 1).
Unlike the previous resolution, the 2015 resolution reveals the concept of the subject of extortion, which includes not only other people’s property (things, including cash, documentary securities; non-cash funds, uncertificated securities, property rights, including rights of claim and exclusive rights), but also the right to property (the ability certified in documents to exercise the powers of the owner or legal possessor in relation to certain property) (clause 2) and other actions of a property nature, the commission of which is aimed at extortion, as well as actions , not directly related to the transfer of ownership or other property rights (clause 3). Unlike the 1990 resolution, the 2015 resolution contains the concept of a victim of extortion, which can be recognized not only as the owner or legal owner, but also as another actual owner of the property who has suffered physical, property or moral harm (clause 4).
The 2015 resolution contains an expansive concept of the victim’s relatives, including, among other things, relatives of the victim, as well as persons related to the victim (clause 5).
The short stories include mention of a threat, which must be perceived by the victim as real, i.e. there must be reason to fear that this threat will be carried out. To assess the threat as real, it does not matter whether the perpetrator expressed the intention to carry it out immediately or in the future (clause 6).
Failure of the victim to comply with the requirements, combined with that specified in Part 1 of Art. 163 of the Criminal Code of the Russian Federation by threat does not affect the legal assessment of the act as a completed crime (clause 7).
The 2015 resolution contains a provision on the qualification of extortion as a single crime in the case when it comes to repeated demands under threat addressed to one or more persons, if these demands are united by a single intent and are aimed at taking possession of the same property or right to property or to receive material benefit from committing the same action of a property nature, as well as in the case when the requirements are aimed at periodically transferring property to victims, for example, the monthly transfer of a certain amount of money) (clause 8).
The 2015 resolution pays attention to the qualifications of extortion involving various types of harm to health.
If extortion involves beatings, causing minor or moderate harm to health, or torture, then such actions of the perpetrator should be qualified under paragraph “c” of Part 2 of Art. 163 of the Criminal Code of the Russian Federation without additional qualification under Art. 112, 115, 116 or 117 of the Criminal Code of the Russian Federation. In the case of intentional infliction of grievous bodily harm on the victim, the act is qualified under paragraph “c” of Part 3 of Art. 163 of the Criminal Code of the Russian Federation and does not require additional qualifications under Art. 111 of the Criminal Code of the Russian Federation.
If, during extortion, the infliction of grievous harm to the health of the victim resulted through negligence in his death, the act should be regarded as a set of crimes provided for in paragraph “c” of Part 3 of Art. 163 of the Criminal Code of the Russian Federation and Part 4 of Art. 111 of the Criminal Code of the Russian Federation. Extortion associated with murder is classified as a set of crimes provided for in paragraph “c” of Part 3 of Art. 163 and paragraph “z”, part 2, art. 105 of the Criminal Code of the Russian Federation (clause 9).
Like the no longer valid document, the new resolution also pays considerable attention to the issues of distinguishing extortion from related crimes.
When distinguishing robbery and robbery from extortion combined with violence, it should be taken into account that in robbery and robbery, violence is a means of taking possession of property or retaining it, and in extortion it reinforces the threat.
In robbery and robbery, the taking of property occurs simultaneously with the commission of violent acts or immediately after their commission, and in extortion, the intent of the perpetrator is aimed at obtaining the required property in the future.
If extortion involves the seizure of the victim’s property, in the presence of a real set of crimes, these actions must be additionally qualified as robbery or robbery (clause 10).
If, during the course of extortion, someone else’s property was destroyed or damaged and these acts resulted in significant damage to the victim, then there is a set of crimes provided for in the relevant parts of Art. 163 and 167 of the Criminal Code of the Russian Federation (clause 11).
In contrast to the 1990 resolution, the 2015 resolution states that during the course of extortion, dissemination of knowingly false information discrediting the honor and dignity of the victim or undermining his reputation, dissemination of information about the private life of a person, disclosure of the secret of adoption, illegal disclosure information constituting commercial, tax or banking secrets form a set of crimes provided for in the relevant parts of Art. 128.1, 137, 155 or 183 and Art. 163 of the Criminal Code of the Russian Federation (clause 12).
Unlike the 1990 resolution, the 2015 resolution contains an important provision on the legality of requirements for the transfer of property or the right to property or the commission of other actions of a property nature. If these demands are legitimate in nature, but are accompanied by a threat, then if there are signs of another crime, the act should be qualified under the relevant article of the Special Part of the Criminal Code of the Russian Federation (clause 13).
Unlike the 1990 resolution, the new resolution contains provisions on the qualification of a crime committed by a group of persons by prior conspiracy, on complicity (clause 14) and the qualification of extortion committed on a large or especially large scale (clause 15). At the same time, the cost of a claim aimed at transferring someone else’s property, rights to property, performance of work or provision of services exceeds the cost specified in clause 4 of the note to Art. 158 of the Criminal Code of the Russian Federation.
The 2015 Decree contains an important recommendation regarding the identification by courts of circumstances that contributed to the commission of a crime, violation of the rights and freedoms of citizens, as well as other violations of the law and, through private determinations (decisions), to draw the attention of relevant organizations and officials to them (clause 16).
In my opinion, the adopted resolution should be assessed positively, since the previously existing resolution was long outdated and contained references to legislation that had lost force (the Criminal Code of the RSFSR, the Code of Criminal Procedure of the RSFSR).
However, only time will tell how much the new resolution will help solve problems related to the classification of extortion.
