A detailed analysis of the concept of causing death by negligence. Qualifying characteristics, penalties under Art. 109 of the Criminal Code of the Russian Federation

The concept of manslaughter is more often used at the everyday level. In the legal literature, this term is replaced by murder committed through frivolity or negligence, as a result of unforeseen circumstances or arrogance in accordance with, and 105 articles of the Criminal Code of the Russian Federation. The corpus delicti itself appeared in the practice of Russian law relatively recently. Law No. 63-FZ of June 13, 1996 introduced a new article 109 of the Criminal Code of the Russian Federation “Causing death by negligence” (hereinafter referred to as the article).

What is included in the concept of “unintentional” or “unintentional” causing death?

Experienced lawyers differentiate these concepts in the context of modern terminology and definitions. “Murder” itself in this case is transformed into the definition of “causing death.”

Legal scholars include the concept of unintentional murder within the broader concept of “causing death by negligence.” Murder in this perspective is considered not as an act, but as guilt in committing actions (inactions) that resulted in death due to negligence. This gives us a general definition for these two concepts.

In accordance with Art. 26 of the Criminal Code of the Russian Federation, the crime has a number of distinctive features:

• the action or inaction is the objective cause of death;
• the action is not committed intentionally, but through negligence;
• negligence is expressed in criminal frivolity or negligence;
• frivolity implies foreseeing the possibility of the consequences of actions in the form of death, but without sufficient grounds for this, the person arrogantly expects to avoid death;
• negligence involves failure to foresee the possibility of the situation described above, although with the necessary care and forethought the person should and could have foreseen the death.

Therefore, there is no direct intent to kill. There is no intent or conscious intent to cause death.

Assassination

What is attempted murder anyway? What the criminal does (does not do) with the aim of depriving a person/people of life, but cannot complete the crime because something interfered.

This explanation is contained in the third part of Article 30 of the Criminal Code. The age of the offender is not specified. Consequently, attempted murder by a minor will be considered through the prism of several articles at once.

First, the court will have to qualify the attempt under any of the “murderous” articles. Then, accept as truth that the failed minor murderer did not abandon the attempt on his own, but under the influence of some circumstances.

Finally, Article 66 of the Criminal Code will be applied. She points out: it is necessary to take the maximum sentence for the charged article and leave three quarters of it. How long a teenager can atone for his guilt will be discussed below.

Qualifying features

Differentiation of composition is carried out according to two qualifying criteria. The cause of death due to negligence can be:

1. improper performance of professional duties;
2. actions or omissions resulting in the death of two or more persons

Well, and any other actions that resulted in the death of one person. The study of the first sign reveals the professional side of the crime and assumes greater responsibility due to the presence of knowledge, diploma, qualifications, experience, and training in safety rules.

When proving guilt, they consider whether the action is within the scope of the person’s professional duties. They are recorded in standard state safety standards, special laws or acts, internal company documentation and job descriptions. In general, they characterize the degree of improper performance of duties.

Also taken into account are volitional efforts in insufficient manifestation. For example, in case of confusion. In accordance with Art. 6, this norm does not apply if the Criminal Code contains special articles provided for certain types of activities and, in particular, if safety rules are not observed. These include, for example, Art. 143, 215, 238, 263, 266, etc. The second classifying feature is the number of deaths as a result of careless actions.

Important. In the legal literature there is a system of cases and actions that can cause death to a person through negligence. There are a large number of classifiers that study this problem. In a broader sense, all factors are divided into simple, complex and alternative, in accordance with the Criminal Code.

Simple crimes include Art. 109. Examples of complex compositions are Art. 111, 123, 124, 220, 248. The object is considered in them in two ways, on the one hand - safety of activity, on the other - life. Art. 218, 351, 352. In them, guilt is imposed on at least one item from the list, but with the condition of causing death by negligence.

How to reduce the risk of death of workers at work?

To reduce the risk of injury and mortality at work, the employer should ensure that employees are familiarized with current safety and health regulations. Typically, a labor safety engineer is responsible for carrying out this activity. He also develops an emergency plan.

In addition, you should regularly check the serviceability of equipment, automate production as much as possible, introduce remote control if possible, and use personal protective equipment.

All workers must be trained on how to deal with an accident at work.

The main differences between actions committed through negligence and with indirect intent

These signs distinguish murder by negligence from intentional murder.

Commentary on Article 109 of the Criminal Code of the Russian Federation

The legislation distinguishes the concept specified in the article from accidental causing of death. Under circumstances of an indirect nature of causing death, i.e. not directly from the actions of a specific person, there is no liability. For example, death may occur as a result of the breakdown of equipment used to provide services. Provided that it was in good working order and met all standards, the performer is declared innocent.

Changing the interpretation from “murder” to “unintentional causing of death” provides greater justice for persons who, in fact, did not have the intention of taking a life. In cases where the charges under the article are justified, the process of reclassifying the case under Art. 105. In most cases, with a planned plan, there is a high probability of “staying dry” or receiving a minimum punishment, provided that the intent is concealed.

Frivolity and negligence are mutually exclusive. In the first case, death is assumed as an outcome, but due to the incomparability of the capabilities of the accused and real conditions, taking into account psychosomatic factors that a person cannot control, such an outcome was excluded. In the second interpretation, the defendant could not predict the outcome of events based on experience due to circumstances beyond his control.

Frivolity is characterized by:

• The ability to foresee death from an action.
• The desire to prevent death.
• Arrogant calculation.
• The presence of a forecast of actions, built taking into account the experience of similar situations.
• The danger of an action is realized only with a fatal outcome, not earlier.

For example, a driver is driving along a highway at a speed of 90 km/h. On a dangerous section of the road, he decides not to slow down, because... Having noticed a threat, he will be able to slow down without consequences. And suddenly his brake system fails and he hits a road service worker.

Negligence is characterized by:

1. Actual failure to foresee, although in theory the person could have foreseen the outcome.
2. Inattention or lack of foresight that contributed to the lack of foresight.
3. Reluctance and prevention, to the best of one’s ability, of a lethal outcome from the action.
4. There is no forecast, because a person does not expect certain events from his actions.
5. The criminality of the act is considered an accident.

For example, a driver is driving along a poorly lit unfamiliar street and does not notice a road sign requiring him to give way because of a nearby tree.
As a result, an accident occurs involving another driver, resulting in his death. In this case, the person was moderately attentive, but did not sufficiently foresee all the possible outcomes of his action. The age criteria under the article for the accused is 16 years or older at the time of the crime. In this case, any person, regardless of age (child, capable person, pensioner), is recognized as an injured person.

Features and Examples

Unfortunately, judicial practice on this topic is quite extensive. Below are two real life examples:

Example 1. 17-year-old Full Name 1, together with a group of friends, had a fun time drinking alcohol at his friend’s apartment. After an impressive dose of alcoholic drinks, even by the standards of an adult, Full Name 1 and Full Name 2 began a conflict over attention to the same girl, but the quarrel was localized and temporarily cooled down. According to witnesses, and that evening the company consisted of 12 people, including the above-mentioned persons, the quarrel developed into a friendly joke, and the conflict was settled.

But after the company began to go home, Full Name 1 and Full Name 2, together with another friend of theirs, walked the same road. And at this time, the conflict flared up with renewed vigor between these three persons, while FULL NAME 1 remained in the minority. In the heat of a quarrel, FULL NAME 1 took out a small folding knife and inflicted several stab wounds on one of his opponents in the abdominal area, after which, throwing the knife, he ran away.

After being brought in as a defendant, since he was directly pointed out by an eyewitness to the events, Full Name 1 wrote a confession, and also insisted that he acted in a state of passion, since the murdered man repeatedly and systematically insulted him. This fact was not confirmed during the investigation, but a psychological and psychiatric examination indicated full control and sanity of the accused. As a result, Full Name 1 was found guilty and sentenced to 8 years in a correctional colony.

Example 2. 16-year-old teenager Pavel was subjected to attacks in every possible way not only from his classmates, but also from many teachers, the class teacher was especially harsh, who, as it became known after the investigation, even used physical force. Pavel’s family tried to influence the situation, contacted the school administration and resolved the conflicts for a while, but after a while they resumed with renewed vigor. Pavel, who was in an agitated mental state, could not withstand such a load. On one particularly difficult day, after being beaten by high school students, Pavel ran home from class. My father kept a hunting sawed-off shotgun and a cleaver. Taking this weapon, Pavel went to the school and dealt with the offenders once and for all, killing 5 people.

An incredibly difficult situation to qualify, because, on the one hand, there is a mass murder and shooting in a public place, and on the other, the accused is to some extent a victim, since there are no guarantees of his sanity, and no matter how heartless it may sound, the dead “had a hand” in shaping the killer. Such situations occur quite often; two similar cases have already occurred this fall.

Corpus delicti

The object is the life of the victim. At the same time, the objective side of the crime expresses the absence of a cause-and-effect relationship between the actions (inactions) that caused death and the result itself, i.e. death due to negligence on the part of the accused.

The subject is the person whose careless actions resulted in death. The subjective side of a criminal act (socially dangerous or punishable) is expressed by frivolity or negligence of the action. In this case, the person either self-sufficiently expects the best outcome of the event, or does not have the opportunity to objectively assess the situation, although he should logically foresee.

Negligence in the event of force majeure is not prosecuted under the Law (Article 28).

In what cases is an employer not liable for the death of an employee at work?

It is important to find out under what circumstances the employee’s death occurred. An incident is considered industrial if an employee dies:

• on the territory of the organization during working or lunch hours;
• on the way to the place of work on official transport;
• business trip;
• during the period of work on a rotational basis.

In the event that an employee died while he was outside the enterprise and did not perform his job duties at that moment, the employer’s liability does not arise. For example, at home on a day off, in another city during annual vacation, or other similar situations.

In order to clarify whether the death of an employee occurred while performing work duties or at another time, contact our specialists. We will study all the circumstances and help prepare evidence that the employer is not at fault.

Analysis of real cases

The child suffocated while feeding

An inexperienced mother decided to breastfeed her newborn. During feeding, the child suffocated as a result of mechanical asphyxia of the respiratory tract. The consequence of this was the omission of the mother, who fell asleep and blocked the access of oxygen with her breasts.

In this case, the mother's frivolity takes place. Knowing about her fatigue and anticipating the possibility of falling asleep, she did not provide basic safety for the child. Relying on her own strength, she continued to feed the child while lying down. In case of intentional actions aimed at murder, such a mother will be convicted under Art. 106. Because If there is a specific composition in the Criminal Code, another rule is applied.

You can read more about how a person is punished for killing a child here.

If it was not a newborn, but the mother had an indirect intent to kill, when, foreseeing the event, she treated it without due attention or indifference, Art. 105. For example, a parent sees that a child is playing with matches, but does nothing. By leaving the child unattended, the mother deliberately allows for accidental arson and the death of the child. This means her desire for such a coincidence of circumstances can be traced.

But, in some cases, it is difficult to prove intent without eyewitness testimony. Therefore, the outcome is considered as an unforeseen event as a result of the child’s excessive activity with some guilt of one of the parents who did not watch, did not protect or did not block from the event.

Crane operator accidentally kills man by dropping stove

A construction team is working at the site. Two people die when a slab accidentally falls from a tower crane. The remaining group of people manage to run away. On the one hand, the crane operator’s actions will be justified if he performed the work on working equipment and did not intentionally make mistakes. On the other hand, the prosecution must insist that the workers did not comply with safety regulations. The gravity of the situation is most often considered an innocent death and is released from liability.

If the crane operator could not notice people due to circumstances, but, counting on their literacy and professional training, continued to manipulate the lift, while hoping for a better set of circumstances, then he may be convicted under the article.

Improper performance of duties here could manifest itself in overloading the load at height, because the cable is designed for a certain weight and number of lifts. At the same time, all technical circumstances and reasons why workers remained in the high-risk area must be studied. In case of direct violation of safety rules by the crane operator, he will be charged under Art. 269. If unusable equipment was used, the management of the contractor company will also bear responsibility, also according to the Criminal Code.

Cardiac arrest in a patient under anesthesia

The dentist performed oral prosthetics. During the administration of anesthesia, the patient suffered cardiac arrest. In this case, a certified injection solution was used in compliance with the dosage. The specialist is charged with Art. 109 due to failure to conduct an individual study of the patient to determine the tolerability of the type of anesthesia used. And this is included in the range of his professional responsibilities. Calculating “maybe”, the doctor underestimated the risk, taking into account various characteristics of the body.

In the same situation, but when the service is performed without an activity license, liability increases significantly. In such cases, the case is considered under Art. 235.

Summarizing the above, we can draw the following conclusions. Responsibility under this article is not unified due to the variety of actions that can result in death. Guilt can either be proven or attributed to innocent causing of death. A feature of the crime under this article is the possible specification of the composition, which leads to the replacement of Art. 109 to any other crime that falls by definition under this crime included in the Criminal Code.

Responsibility

Responsibility (punishment) is assigned based on severity.

The lightest punishment under Article 109 of the Criminal Code of the Russian Federation is described in Part 1 - “simple” manslaughter, i.e. without aggravating factors, 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.

More severe punishment is provided for in Part 2 and Part 3 of Art. 109 of the Criminal Code of the Russian Federation - these are the very aggravating factors:

• Part 2 – Causing death by negligence due to improper performance by a person of his professional duties is punishable by restriction of freedom for up to three years, or forced labor for up to three years with deprivation of the right to hold certain positions.
  More information about murder with aggravating factors can be found here.

  Or engage in certain activities for a term of up to three years or without it, 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.

• Part 3 – Causing death by negligence to two or more persons – is punishable by restriction of freedom 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 up to three years or without it.

Legal advice on employer liability for the death of an employee at work

For the most competent strategy to protect an employer from criminal liability for the death of an employee at work, you need to involve an experienced defense lawyer from SKP, who specializes in resolving such situations. Our lawyers have extensive experience and extensive practice that allow us to find mitigating circumstances or prove innocence. If you have a need for legal assistance, fill out the feedback form or call. We will answer your questions at any convenient time.

Problems of delimitation

The signs under the article are clearly distinguished from intentional actions. In this regard, it is impossible to connect murder with causing death by negligence.

The main problem under this rule is the complex process of proving the unintentionality of actions. It is important to take into account the absence of indirect intent. With various types of omissions on the part of the prosecution, the situation serves in favor of the accused and the essence of the crime changes. If there is evidence, similar compounds are imputed based on distinctive features (Articles 111, 124, 128, etc.).

From the point of view of the specifics of the norm, here you can stumble upon duplication of charges, but with the application of more severe penalties due to the characteristics of the activity or specific situations (Articles 123, 126, 127, etc.). Alternative punishment is also provided to encourage certain categories of persons to perform high-quality work, comply with the rules and regulations when handling explosive compounds, weapons, and when operating any vehicles and equipment.

The problem of unfounded accusations is often expressed in the inability to prove indirect or direct intent. And the use of a polygraph is used upon request, most often, if it is impossible to prove one’s innocence (on the part of the accused). And it is not always accepted by judges as a valid argument.

Also, the difficulty of imputing another article is explained by the long process of preparing cases, their expert substantiation with the involvement of third-party specialists. It is required to study material on a specific type of activity, analyze the features of equipment and organization of the work process, identify the job responsibilities of each person, apply general standards for mechanisms and tools, etc.

Only after a comprehensive analysis of the case is a reasonable position on the charges established. And if it is impossible to classify it as an alternative, they request the minimum punishment under Art. 109.

Death from medical errors

Sometimes death occurs due to an incorrect decision during surgery or an incorrect treatment plan. According to current legislation, doctors are responsible for this. They have information about treatment methods in a particular case, and can also vary medications based on the characteristics of the patient’s disease. Public organizations have repeatedly proposed to soften the punishment for the mistake and transfer it to the category of the administrative code, but the authorities insist that the punishment be provided for by the Criminal Code of the Russian Federation.

The fact is that according to the Code of Administrative Offences, the punishment is lenient; doctors have no incentive to carefully study all the nuances when choosing treatment. But, on the other hand, they are forced to always insist on their own. Having realized that they made a mistake, they cannot apologize to the patient and make another appointment. Therefore, the position on punishment within the framework of the Criminal Code of the Russian Federation has its advantages and disadvantages.

The problem when investigating medical errors is the lack of appropriate qualifications among law enforcement officials. They do not understand how the prescription is made, what the doctor relies on when prescribing a treatment plan, so they are forced to look only from the position of law. However, when interviewing the accused doctor's colleagues, they understand that the latter will try to protect him.

Iatrogenic crimes are planned to be given a special status in Russia, as their number is growing every year. So, a special department will be created that will investigate them. This will increase the knowledge of the staff of the prosecutor's office and the investigative committee in the medical field, which will lead to a more objective analysis. Today we have to be guided by the testimony of fellow doctors and medical examination data.

Patient dies on the operating table

Important! The examination can be carried out in any organization that has a license. But when ordering its passage by the court, it is necessary to have appropriate accreditation. Today, the cost of an examination depends on the complexity of its implementation. The average price is about 10,000 rubles in the regions and 18,000 rubles in Moscow and St. Petersburg.

Thus, iatrogenic crimes are investigated as follows:

• collection of primary data;
• version building;
• passing the examination;
• obtaining additional information;
• preparing the case for trial;
• making a decision by the court on the preventive measure.

The investigation may last several months. This is normal, given the complexity of the situation and the impossibility of interviewing the victim due to his death. An additional difficulty is the lack of video surveillance systems in the offices and operating rooms of most clinics.

Responsibility of doctors for the death of a newborn during childbirth

Problems arising during childbirth are considered particularly difficult. Here it is almost impossible to prove that doctors caused harm during childbirth if they did not perform a caesarean section to remove the fetus from the mother. Thus, the employees of the Investigative Committee have to be guided by:

• testimony;
• pregnancy history records;
• interpretation of analyses;
• information about what problems there were during the development of the fetus.

The fact is that insufficient attempts can sometimes suffocate the baby during childbirth. Moreover, if the obstetrician himself resorts to excessive efforts to deliver the baby, then there is a high probability that the baby will receive a birth injury that is incompatible with life.

Thus, all issues related to infants are subject to special scrutiny. If mortality rates in the maternity ward are high, a comprehensive review will be carried out.

Today, causing death by negligence is usually punished lightly. You can often get a suspended sentence. However, in the event of a relapse, there will already be a severe preventive measure, under which it is possible to reclassify the article. Prosecutor's office employees do not believe in coincidences, so the likelihood of receiving a suspended sentence twice is practically absent.

If a Russian is tried abroad for causing death by negligence, then the provisions of the laws established in that particular country apply. You are required to immediately inform the employees of the Russian Embassy in a specific country about your detention. They will provide a lawyer and help solve the problem with the detention.

Woman giving birth