Any unfinished crime constitutes an attempt. Tried to steal and was detained - attempted theft, tried to cause grievous harm and was stopped - attempted bodily harm, tried to kill and failed - the actions of the culprit involve attempted murder of a person. In the latter case, in practice problems arise with the correct determination of qualifications. It is often difficult to determine what the criminal wanted - simply to make threats and back them up with appropriate actions, or to actually kill. There are many signs by which you can accurately determine the intentions of the guilty person - we will talk about them in this article.
Attempted murder
To begin with, we note that this type of criminal act can only be committed with direct intent. This means that the criminal directly desires the death of the victim and does everything to ensure that death occurs. In this case, the actions of the perpetrator must be stopped by someone, suppressed, in other words, that is, something must prevent the further commission of the crime. As a result, death does not occur for objective reasons, in the absence of which the act would be completed.
So, attempted murder is qualified under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation. If the criminal’s guilt is proven in court, then, according to the rules of criminal law, the punishment cannot exceed ¾ of the maximum provided for in the article.
Example No. 1 . Protonov P.R., being intoxicated, due to a minor dispute, began to strangle his wife Protonov A.P., pressing her against the wall. When the wife began to turn blue and wheeze, the couple’s eldest son ran into the kitchen, where all this was happening, who freed his mother and called the police. In this case, there was every reason to believe that without the intervention of Protonov’s son A.P. would have been strangled to death. Since, according to Article 105 of the Criminal Code of the Russian Federation, for a completed murder, up to 15 years of imprisonment can be imposed, taking into account the attempt, the convicted person (3/4 of 15 = 11 years is the maximum possible punishment) was given 10 years of imprisonment.
Thus, an attempt means the impossibility, for objective reasons, of bringing one’s intention to completion. Such a “truncated” composition can occur when committing almost any crime (theft, robbery, rape, etc.). The incompleteness of actions is indicated in the form of an additional combination “h. 3 tbsp. 30 of the Criminal Code of the Russian Federation" to the main article. At the same time, when committing some types of acts, an attempt is impossible (for example, during a robbery: it is always over at the moment of the attack, regardless of whether it was possible to take possession of the victim’s property or not).
Criminal liability. What's the threat?
The Criminal Code establishes liability for such an act.
Thus, crimes corresponding to part one of article one hundred and nineteen are subject to punishment in the form of compulsory labor under the control of the criminal correctional inspection for up to four hundred hours , as well as, in some cases provided for by law, imprisonment for up to two years .
Arrest may also be charged, that is, staying in a detention center for up to six or seven months , as well as serving a sentence of imprisonment in a maximum security colony .
for qualified characteristics . Thus, crimes corresponding to the second part are punishable by forced labor for a term of up to five years, as well as imprisonment for a term of up to five years, deprivation of the right to hold certain positions, and correctional labor for a term of up to six hundred hours.
Types of unfinished murder
In relation to murder, an attempt can take place not only in the case of Part 1 of Art. 105 of the Criminal Code of the Russian Federation (that is, when the perpetrator commits an “ordinary” murder - in a fight, out of jealousy, out of revenge, etc.), but also in other situations:
1. when a “qualified” murder is planned, but not completed - for example, in relation to several persons (clause “a”, part 2 of Article 105 of the Criminal Code of the Russian Federation) or as part of a group of persons by prior conspiracy (clause “g” Part 2 of Article 105 of the Criminal Code of the Russian Federation), or deprivation of life was committed with particular cruelty (clause “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation), etc.
Example No. 2 . Vasilevna. had the intent to kill two half-brothers over a dispute over an inheritance. Vasilevna. fired two shots, each of which was intended separately for each of the brothers. As a result, one of the victims died, the other was taken to the hospital, where, after receiving medical assistance, he remained to live. Since the investigation proved Vasiliev’s direct intent to kill two persons, his actions were qualified under Part 3 of Art. 30, paragraph “a”, part 2, art. 105 of the Criminal Code of the Russian Federation, since the result required by the perpetrator was not achieved due to circumstances beyond his control;
2. when a mother tries to kill her newborn child, but she fails to do so - such actions will fall under Part 3 of Art. 30 tbsp. 106 of the Criminal Code of the Russian Federation.
Example No. 3 . New mother of Solovyov A.R. tried to get rid of a newborn baby by throwing him into a full bathtub. After being in the water for more than an hour, the baby remained alive, because the so-called “instinct of self-preservation” and the ability to stay in the aquatic environment worked. In addition, Solovyov A.R. Just at this time, a pediatrician visited at home and demanded to see the child. Solovyova A.R. replied that she killed her son by throwing him into a full bath an hour ago. The pediatrician found a child who was in serious condition, but alive; after first aid was provided, his life was no longer in danger. Solovyova was convicted under Part 3 of Art. 30 tbsp. 106 of the Criminal Code of the Russian Federation to restriction of freedom for a period of 2 years. The criminal case brought against her was the basis for deprivation of parental rights;
3. when death is caused in a state of passion - strong emotional excitement that arose suddenly against the background of the unlawful actions of the victim.
Example No. 4 . Student Ivanov P.L. For several months he endured bullying from fellow students who posted offensive posts on social networks alleging P.L. Ivanov’s non-traditional sexual orientation. The “last straw” for Ivanov was the discovery of the corresponding nature of the inscriptions in paint on the asphalt in front of the entrance to his house. At the same time, Ivanov found one of the authors of the insults, who was completing his “creation” and was about to escape. Ivanov caught up with him and struck his fellow student with force several blows to the temple with the help of a cobblestone immediately lifted from the ground. The victim, in a coma, was taken to intensive care, where after a few days he came to his senses and gradually recovered. Ivanov was convicted of attempted murder in a state of passion - under Part 3 of Art. 30, part 1 art. 107 of the Criminal Code of the Russian Federation.
Concept
Murder is a deliberate act directly or indirectly aimed at taking the life of a person, which entails his death.
Attempt , if considered from the point of view of the stage of committing a crime, is a stage when an antisocial act has already been planned and prepared, but due to some circumstances beyond the control of the criminal, it was not brought to the expected result.
Based on this, attempted murder can be defined as deliberate, planned and prepared actions aimed at taking the life of a person, but for some reason he fails to complete the plan and the victim remains alive.
When there can be no assassination attempt
We have already noted that in some crimes an attempt is impossible. Judicial practice and the general rules of the Criminal Code of the Russian Federation also identify several situations in which death was prevented, but Part 3 of Art. 30 of the Criminal Code of the Russian Federation does not apply in this case. In other words, there can be no attempt:
If the limits of necessary defense are exceeded (Article 108 of the Criminal Code of the Russian Federation)
Thus, if in response to unlawful violent actions a person uses force, the nature of which clearly does not correspond to the nature of the attack, the incompleteness of the act is excluded.
Example No. 5 . A neighbor in the hostel, with whom V.A. Plotnikov was repeatedly convicted. I drank often and decided to make fun of the latter. The neighbor pretended to throw dart arrows right at V.A. Plotnikov’s face, but he did not understand the joke and threw a kitchen knife at the joker’s body. The knife penetrated so deeply into the liver area that the victim was on the verge of death due to massive blood loss. Plotnikov V.A. was found guilty of attempted murder under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation. The convict appealed the verdict, stating in the appeal that he acted within the limits of necessary defense. However, the guilty verdict was left unchanged. Thus, the higher court stated that there was no necessary defense, since the actions of the victim objectively could not be regarded as a threat to life.
In the above example it is clear that attempts under Art. 108 of the Criminal Code of the Russian Federation cannot be: it will either be an attempted “simple” murder under Art. 105 of the Criminal Code of the Russian Federation (as in the case of V.A. Plotnikov), or causing grievous harm when exceeding the limits of necessary defense (in the case where the need for defense was objectively confirmed);
In case of careless death (Article 109 of the Criminal Code of the Russian Federation)
Since an attempt can only be intentional, and this crime has only a careless form, the application of Part 3 of Art. 30 of the Criminal Code of the Russian Federation cannot exist here.
When attempting to kill a law enforcement officer
Example No. 6 . Policeman Vtorov N.E. Convict P.P. Kiselev tried to kill. Thus, Kiselev believed that he was behind bars only thanks to detective N.E. Vtorov, and after his release from the colony he attacked N.E. Vtorov. with a knife. Kiselev was convicted under Art. 317 of the Criminal Code of the Russian Federation to life imprisonment, while the court took into account that Kiselev committed an attack on the life of a law enforcement officer in conditions of relapse (he had previously been convicted of murder of an accomplice).
It follows from the example that in crimes of this category (attack on the life of a policeman, investigator, FSB officer, etc.), it does not matter whether the criminal carried his intent to take life to completion - reference to Part 3 of Art. 30 of the Criminal Code of the Russian Federation is not used. If Vtorov N.E. died, then Kiselev’s actions would be qualified under the same article.
Signs
The stage of the assassination attempt is in many ways similar to the previous stage - preparation, or the subsequent stage - the completed crime.
Signs will also help distinguish between an attempt and a voluntary renunciation of the crime, such as:
- objective;
- subjective.
Objective
There are two objective signs that allow us to determine that the murder was prevented at the attempted stage:
- The person has already begun to carry out the objective side of the crime, that is, the actions are already aimed directly at taking a life. For example, a criminal takes out a gun and starts aiming at the victim with the goal of killing him.
- While carrying out the objective side of the offense, the person was unable to complete his plan for reasons that were beyond his control. Continuing with the example, the person shooting at the victim misses either the shot was not fatal or was promptly apprehended by law enforcement officers.
Subjective
The subjective criterion is the relationship of the subject of the crime to his own actions; he intentionally commits a socially dangerous act, foresees and desires its occurrence.
Classification
Attempt can be classified on various grounds.
Upon completion of the criminal's actions
Here are the highlights:
- Finished - the person acted according to his plan, but was unable to implement it for some reasons that the person did not foresee.
- Unfinished – a person was unable or did not have time to complete the planned actions aimed at causing death.
By type of intent
Resolution of the plenum of the Armed Forces of the Russian Federation dated January 29, 1999 No. 1 in the second paragraph indicates that an assassination attempt is possible only with direct intent.
Due to incompetence
- Committing an antisocial act with an unsuitable object , that is, with this instrument it is impossible to achieve what was intended. For example, a man wanted to shoot a victim with a pistol, but he was not a worker.
- Committing criminal acts on an unsuitable object is an error in the object . An example would be when a person takes the necessary action to take a life, but the victim was already dead.
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Problems of differentiation from other compounds
Some difficulties in determining qualifications may arise when distinguishing between premeditated attempted murder and other offenses.
Death threat
Thus, it is not uncommon for a guilty person to shout “I’ll kill” and put a knife to his throat, strangle him with his hands or with a rope, etc.
How can you tell if a criminal's intentions are real? How to evaluate his actions - as part 3 of Art. 30 hours 1 tbsp. 105 of the Criminal Code of the Russian Federation or Art. 119 of the Criminal Code of the Russian Federation (threat of murder)? In such difficult situations, it is impossible to determine the correct qualification without carefully studying all the circumstances, the smallest details and reliable data on the direction of intent. It is especially important to correctly assess what is happening, given the huge difference in punishment for committing these crimes. So, according to Art. 119 of the Criminal Code of the Russian Federation, the maximum punishment facing the perpetrator does not exceed 2 years of imprisonment.
Example No. 7 . Marchenko V.A. during a quarrel with his shift partner, he began to choke him, pressing him with his body to the floor. Victim Ermolin R.L. was weaker in build than Marchenko, 20 cm shorter than him, weighed 63 kg, while Marchenko V.A. with a height of 188 cm, he weighed 110 kg, and had been professionally engaged in wrestling all his life. These data helped the court to conclude that the actions of Marchenko V.A. there was an attempted murder, in this regard, he was given a sentence of 11 years in prison under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation. The judge indicated in the verdict that Marchenko V.A. had the direct intent to deprive the victim of his life, since his actions of strangulation were directly aimed at achieving this goal. Marchenko stopped only after the active intervention of the head of security, who forcibly pulled the culprit away from the victim, while Ermolin R.L. lost consciousness, serious consequences were recorded in the form of significant damage to the trachea, which resulted in disability. The convict's arguments that he wanted to show only a threat in this way and committed a crime under Art. 119 of the Criminal Code of the Russian Federation were considered unconvincing.
Thus, when distinguishing between these crimes, law enforcement agencies proceed from the totality of evidence indicating the presence of intent to kill, or the absence of this criterion;
Serious bodily harm
Criminal cases where the victim has suffered grievous bodily harm are the most difficult from the point of view of a correct legal assessment.
Example No. 8 . Kolosov A.K. struck P.L. Mlechnikov twice with a screwdriver in the heart. during a fight. The victim miraculously survived, underwent multiple surgeries to restore connective tissue, and was in hospital for a long time. The harm caused to Mlechnikov P.L. was recognized by the expert as serious, life-threatening, which means a very real lethal outcome in the absence of medical intervention. Kolosova A.K. accused under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation. However, his lawyer did not agree with this article, believing that the case should be initiated under Part 2 of Art. 111 of the Criminal Code of the Russian Federation and punishment must be determined only for causing grievous harm to health, the intent to take life has not been proven.
In the appeal court, the verdict under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation remained in force, since the actions of A.K. Kolosov, taking into account targeted attacks using a pre-prepared weapon in one of the most important human organs, were regarded as confirmation of the desire to kill.
Example No. 9 . Artamonov A.I. caused serious bodily injury to Nosov K.R. in the form of a ruptured spleen, the case was investigated and tried in court under Art. 111 of the Criminal Code of the Russian Federation - intentional infliction of grievous bodily harm dangerous to life. Artamonov A.I. entered into with Nosov K.R. into a fight, which resulted in no less than 7 kicks to the body of Nosov, who remained alive thanks to a timely operation. It was not possible to prove that Artamonov foresaw and desired the death of the victim. Thus, from the expert’s interrogation it followed that in such conditions, if the same blows were inflicted on another person, there might not have been consequences in the form of a ruptured spleen. The culprit could not know for sure that Nosov could die from kicks. The sentence was passed under Art. 111 of the Criminal Code of the Russian Federation.
The ability to complete your actions
Another point that is always taken into account when delimiting crimes is finding out the possibility of completing one’s actions. So, if the culprit continues his actions of striking, strangling, etc., but he is stopped by other persons, the active resistance of the victim, etc., the qualification under Part 3 of Art. 30, part 1 art. 105 of the Criminal Code of the Russian Federation.
If the perpetrator had the opportunity to complete his crime and cause death, but he did not do this, then his actions would be correctly qualified under Art. 111 of the Criminal Code of the Russian Federation.
Let's sum it up
- Attempted murder is not provided for in a separate article of the Criminal Code of the Russian Federation; to designate it, the combination “part. 3 tbsp. 30 of the Criminal Code of the Russian Federation."
- Attempt means the impossibility of completing one’s intention due to circumstances beyond the killer’s control (intervention of third parties, active resistance of the victim, provision of medical care to the victim, etc.).
- The punishment for attempting to cause death, as for any other unfinished crime, cannot be more than ¾ of the maximum, while the statute of limitations for attempted murder is not reduced and corresponds to 15 years.
- Only murder with direct intent can be unfinished, that is, when a person performs actions directly aimed at causing death and at the same time desires it. It is by this criterion that specialists in criminal law distinguish between Part 3 of Art. 30 hours 1 tbsp. 105 of the Criminal Code of the Russian Federation and other crimes.
Types of application of Article 30 to those who killed
The main qualification of what the killers did falls under Article 105 of the Criminal Code. And when such a crime was started but not completed, then this is Article 105 through 30 of the Criminal Code of the Russian Federation. In this case, it makes no difference which part of the 105th is imputed, the first, second or third. At the same time, an additional 30 can also be applied to cases where:
- an attempt by a mother to kill her newborn child was prevented, 106 UKR;
- an attack with the intent to kill, which began under the influence of passion, was stopped, 107 UKR.
In these episodes, direct intent is unambiguous, and only some kind of external intervention, accidental or special, can stop the crime. A mother trying to kill a newborn child is under the onslaught of hormones and is not aware of her actions, just like a potential murderer in a state of passion. Their impulses are aimed precisely at taking the life of the irritant. It’s another matter when death threatens for other reasons.
