What is privileged murder?

Chapter 16 of the Criminal Code of the Russian Federation “Crimes against life and health” presents a wide list of various crimes that resulted in the death of the victim or loss of his ability to work.

Among them, privileged types of murders are allocated to a special group. These are crimes that, due to special mitigating circumstances, are socially recognized as less dangerous than ordinary types of murder.

The Code has only 3 articles devoted to the application of criminal liability against persons who have committed privileged murders. Let's look at each of them in detail.

What is privileged murder?

Preferential murder is a crime that poses little danger to society. Such insignificance is due to the circumstances of the crime, the status of the guilty person and the victim.

Each crime of privileged murder has its own special characteristics of structural elements.

The following may act as injured parties in privileged murders:

• Newborn baby;
• A torturer who regularly mocks the guilty person;
• An attacker who is the victim of self-defense;
• A criminal during whose arrest his unintentional murder was committed.

The basis for mitigating guilt in privileged murders is the physiological or psycho-emotional state of the subject of the crime.

In practice, the number of privileged murders is many times lower than the number of ordinary qualified.

In addition, investigative authorities are often faced with attempts to disguise an ordinary murder with a privileged composition of the crime. This is primarily due to the desire of attackers to avoid responsibility or minimize it.

The classification of privileged types of murders is as follows:

• Art. 106 of the Criminal Code of the Russian Federation – murder by a mother of a newborn child;
• Art. 107 of the Criminal Code of the Russian Federation - murder in a state of passion;
• Art. 108 of the Criminal Code of the Russian Federation - murder in excess of the limits of necessary defense;
• Art. 108 of the Criminal Code of the Russian Federation - murder in excess of the measures necessary to apprehend the criminal.

Design features

In the Criminal Code of the Russian Federation, Article 61 gives a clear idea of ​​the accompanying circumstances that influence its commission, but smooth out the degree of motivation. The illegal action still occurred, the social danger in it was reduced, for which the law provides for the imposition of a lesser punishment. Defense attorneys always try to find an advantageous element in a crime in order to point it out to the judge and achieve the desired verdict with a reduced sentence.

It is believed that Western lawyers successfully use such criteria in Anglo-Saxon law. Unlike our lawyers, they are not always able to prove the presence of elements mitigating the offense and reduce the term in the sentence. It is more effective to show the privileged corpus delicti in specific cases, without referring to similar criminal cases. The judge does not always make the same verdict in proceedings of the same content. It all depends on the interpretation of the same phenomenon from different angles. In addition, the cases may be similar, but not absolutely identical.

Mother killing a newborn

Infanticide is one of the most controversial crimes . Not all legal experts agree that the murder of a newborn occurs due to a special altered mental state of the woman.

Many believe that such murders are pre-planned and therefore not privileged at all.

The privileged element of murder in this case is assessed in terms of three main issues:

• Whether the status of the victim is a newborn;
• Is the psycho-emotional state of the killer mother normal?
• Whether the crime is directed at a living child or a fetus.

It is generally accepted that from the beginning of labor and the outpouring of water, the child is no longer recognized as a fetus, but is considered a living person.

This point is very important for qualifying the crime. After all, if the mother killed the child before the onset of labor, this action will be recognized as an abortion, and not as a privileged murder.

Therefore, in Art. 106 of the Criminal Code of the Russian Federation states that only the following can be recognized as privileged murder:

• Murder during childbirth;
• Murder immediately after childbirth;
• Murder of a newborn in a state of mental disorder that does not preclude sanity.

According to medical data, a newborn is a child up to the age of 4 weeks.

However, in the legal context, a newborn is a child whose age after birth has not exceeded one day.

Composition of the crime and responsibility under Art. 106 of the Criminal Code of the Russian Federation

This type of privileged crime existed in pre-revolutionary times. During the Soviet years, however, the murder of a newborn was considered an ordinary form of murder.

The offense is as follows:

• The object is the life of a newborn.
• The objective side is an action or inaction that is aimed at causing the death of a child.
• The subjective side can appear both in the form of direct intent and indirect intent.
• A woman giving birth at the age of 16 years, including a surrogate mother, can be recognized as a subject.

If the murder is committed by a biological mother, her actions will be qualified under Art. 105 of the Criminal Code of the Russian Federation.

In our country, only women between 20 and 35 years old can act as a surrogate mother. Therefore, the concept of “mother” in the law is considered only in the context of a woman giving birth, and not a biological mother.

If the woman’s guilt is proven, she faces:

• Restriction of freedom from 2 to 4 years;
• Forced labor for up to 5 years;
• Imprisonment for up to 5 years.

These are the maximum possible sentences . Mitigating circumstances in privileged homicides can also further reduce the degree of liability.

For example, if a woman has young children, is too young, or has a serious health condition, the judge may give her the minimum possible sentence.

Murder in the heat of passion

Affect is a strong emotional outburst that can cause a person to lose control of his actions.

To confirm this circumstance, a mandatory medical examination is required.

Affect can be of two types:

• Legal – slowing down of mental activity and partial loss of behavioral control.
• Medical – complete loss of control over one’s own actions.

With a strong pathological affect, a person for a few seconds is able to demonstrate high levels of strength or other physical superiority that are not inherent in him in ordinary life.

After such a state, as a rule, a person experiences a general inhibition of all processes in the body. Often he even forgets what happened. This state is recognized as insanity.

As a rule, affect is possible as a response to long and systematic bullying of a person. After this, in one moment the victim can turn into the killer of his tyrant.

Composition of the crime and responsibility under Art. 107 of the Criminal Code of the Russian Federation

Privileged murder in a state of passion has always existed since pre-revolutionary times. But the current Code has expanded responsibility for it.

The privileged composition of the offense is as follows:

• The object is the life of the victim, his psycho-emotional state, which was subjected to regular violence.
• The objective side is the presence of a sudden strong emotional disturbance, as a result of which a person committed a murder.
• The subjective side is the direct or indirect intent to kill. Moreover, intent must always arise suddenly at the moment of conflict with the victim. Motives do not matter for qualifications.
• Subject is a 16 year old individual who is in severe emotional distress.

Murder under Art. 107 of the Criminal Code of the Russian Federation must necessarily be caused by violence, bullying or insult on the part of the victim.

For this, the perpetrator faces:

• Correctional labor for up to 2 years;
• Restriction of freedom up to 3 years;
• Forced labor for up to 3 years;
• Imprisonment for up to 3 years.

If two or more people are killed in a state of passion, the offender can receive a real prison sentence of up to 5 years.

Historical summary data

Exceeding the limits of defense

A murder committed when the limits of necessary defense are exceeded is due to the presence of a factor of excessiveness in the actions of the victim. The injured party, wanting to protect itself, and not thinking about causing the death of the attacker, in an instant becomes the subject of the crime.

For correct qualification, great importance is given to the time of counteraction. It must be carried out immediately in response to an attack.

In practice, in 2021, it is very difficult to say unambiguously whether the victim’s reaction in a particular case was normal or excessive.

For example, a criminal could put a dummy weapon on the victim’s back, but the victim perceived it as a real one. In response, he could turn around and stab the attacker with a fatal blow.

The corpus delicti and responsibility under Part 1 of Art. 108 of the Criminal Code of the Russian Federation

If an attack against a person involves violence or the threat of such violence, he has the right to self-defense without limiting its limits.

The composition of the offense in this case has its own characteristics:

• The object is the life of the offender, whose actions were not associated with the use of violence or the threat of its use.
• The objective side is socially dangerous actions that clearly do not correspond to the nature and degree of danger on the part of the victim.
• The subjective side is characterized by direct, but more often indirect, intent. These actions are always spontaneous, so in this case there can be no talk of preparation for murder.
• The subject of the crime may be a sane person over the age of 16 years.

Part 1 art. 108 of the Criminal Code of the Russian Federation provides for the following options for liability for exceeding the limits of necessary defense:

• Correctional labor for up to 2 years;
• Restriction of freedom up to 2 years;
• Forced labor for up to 2 years;
• Imprisonment for up to 2 years.

Obviously, the amount of punishment for taking a person’s life is quite symbolic. It's no wonder that many murderers try to disguise their actions as privileged crimes.

What does judicial practice reveal?

Examples of privileged corpus delicti in judicial practice show the commission of murders with the proven presence of passion or in defense of one’s own life, one’s relatives and not exceeding the limits of self-defense. Cases have occurred of mothers killing their newborn babies after childbirth. The citizen tried to detain the criminal, he attacked him with a pistol, and after grabbing his hand, a fatal shot occurred. The legislator has identified advantages as a separate legal element in order to separate real atrocities from those that do not belong to them.

The action happened, but it is partially justified:

• moral crisis;
• affective mental state;
• inadequate assessment of the situation.

Exceeding the measures of detention of a criminal

In this case, the murder also involves the factor of excess, which in fact could have been dispensed with when apprehending the offender. The investigation takes into account, first of all, the degree of danger of the actions of the troublemaker, who subsequently became a victim of murder.

The persons involved in this type of privileged murder are not only ordinary citizens, but also law enforcement officers whose responsibilities include detaining violators.

For them, more detailed requirements for limiting the permissible limits of detention are reflected in special laws.

So, for example, the Federal Law “On the Police” states that the use of weapons is permitted when detaining criminals committing serious or especially serious crimes . However, it also contains a ban on the use of weapons in large crowds of people.

The corpus delicti and responsibility under Part 2 of Art. 108 of the Criminal Code of the Russian Federation

Not only police officers have the right to detain a criminal. Every citizen can use it from the moment the crime begins, which he unwittingly witnessed.

The corpus delicti is presented as follows:

• The object is the life of the person who committed the crime.
• The objective side is actions that exceed the need to detain the attacker, the consequences in the form of his death and the cause-and-effect relationship between these phenomena.
• The subjective side can manifest itself in the form of direct and indirect intent. Detention can be carried out based on two purposes: bringing the culprit to the authorities and preventing him from committing new illegal actions. In the first case, there is indirect intent, in the second - direct and indirect.
• The subject of the crime is a sane person who has reached the age of 16.

For exceeding the measures during detention, the guilty person may be subject to criminal liability in the form of restriction of freedom, forced labor or imprisonment for up to 3 years.

Criminal liability for privileged types of murders is of a more mitigating nature and extent than for ordinary crimes against human life.

Privileged murders cannot be planned; they are always carried out spontaneously due to certain external circumstances or internal characteristics of the personality of the guilty person.