The concept of special cruelty

With extreme cruelty. Murder is considered especially cruel when the victim is inflicted with special suffering immediately before the taking of life or during the process of murder. For example, applying large quantity bodily harm, burning a person alive, prolonged detention without water and food before taking life, etc.

Particular cruelty can also 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. For example, the murder of the victim in the presence of children.

Particular cruelty as a method of committing a crime

Special cruelty should be understood as a deliberate action (inaction) preceding or accompanying a murder, which is not necessary to cause death to a person and consists of causing the victim or his relatives additional physical or mental special suffering.

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 over 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 a large number of bodily injuries, using a painful poison, burning alive, prolonged deprivation of food, water, etc.). 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 Article 97 and under Art. The Criminal Code of the Kyrgyz Republic, 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.

Analyzing this provision, we can conclude that special cruelty in murder is characterized by one of the following circumstances:

1) the behavior of the perpetrator prior to the deprivation of the life of the victim (torture, torture, mockery, mockery, etc.); in this case, the death itself can be instantaneous (shot, stab, etc.);

2) method of murder (use of painful poison, burning alive, leaving without food or drink, etc.), when death is the end result of the actions of the perpetrator;

3) the circumstances of the murder (causing death in the presence of relatives of the victim, in relation to a helpless person due to age (minor, elderly), illness (physical or mental characteristics victim) or another state (severe intoxication, force majeure, etc.), when the victim understood, realized that they were trying to take his life, asked for mercy, begged the perpetrator not to kill him, tried with all his might to somehow defend himself, escape from the killer, and the culprit, despite all this, nevertheless causes the death of the victim.

The subjective side of murder with particular cruelty can be characterized by direct or indirect intent.

In this case, the perpetrator wants to cause death with particular cruelty or is indifferent to the fact that it causes special physical or mental suffering or deliberately allows them. A necessary condition is that the perpetrator is aware that the victim is experiencing such suffering.

In the legal literature, the question of the criminal legal assessment of the act of the perpetrator is ambiguously resolved when he is mistaken regarding the suffering experienced by the victim. That is, when the perpetrator wants to cause special suffering to the victim, but cannot do this for reasons beyond his control (the victim died after the first blow with a knife or from traumatic shock at the beginning of the torture, due to severe intoxication or another unconscious state, did not feel pain and etc.). Criminal law

Belokurov O.V. Qualification of murder. - 2004.

Criminologically significant features of crimes committed with particular cruelty are a violent-aggressive nature, situational nature, occurring in conditions of social and legal conflict, the special nature of the relationship between the criminal and the victim; changing the forms and manifestations of this type of crime, taking into account the use of the latest scientific achievements; the predominantly ongoing nature of certain types of crimes against the person; seasonal specificity (mostly spring-autumn period); temporary features (most often in the period from 12 o'clock to 15 o'clock and from 20 o'clock to 23 o'clock). Characteristics of quantitative and qualitative indicators of crimes committed with extreme cruelty made it possible to identify the following unfavorable trends: a steady increase in this type of crime against the person (from 0.8% in 2003 to 1.9% in 2008); territorial distribution (at present there are practically no subjects left Russian Federation, wherever facts of committing crimes of particular cruelty were recorded); average level of latency (this level of latency is due to the fact that a number of crimes of the type in question are committed against family members or other persons related to the perpetrator, which does not always make it possible to identify these acts); its repetition (persons who have committed crimes with particular cruelty subsequently commit them for pleasure; an increase in group crimes (69.2% in 2008), including with the participation of minors (30.8% in 2008).

Currently, in the criminal legislation of Russia, the sign of special cruelty is quite common. This is confirmed by its presence not only in the list of circumstances aggravating responsibility for a crime, but also in certain qualifying elements of the Criminal Code of the Russian Federation, such as: i. "d" part 2 art. 105; And. "b" part 2 art. 111; clause "c" part 2 art. 112; And. “c” part 2 art. 131; And. “c” part 2 art. 132. The very concept of special cruelty does not have any legislative support. In view of this, on this moment it exists different interpretation in science and judicial practice. Therefore, in order to resolve the problem of disagreement in matters of interpretation and definition of the definition in question, it is necessary to analyze the evolution of the concept of special cruelty in the doctrine of criminal law (i.e. why and when this category was introduced into criminal law, and how its content changed).

For the first time in domestic criminal legislation, special cruelty as such is mentioned in paragraph “e” of Art. 47 of the Criminal Code of the RSFSR of 1926 as an aggravating circumstance characterizing the social danger of the act. Until this moment, such concepts as torture, torment, special torment, cruelty, cruel torment were used instead. In the science of criminal law, the signs of special cruelty included cases when the process of deprivation of life itself causes the victim particularly severe suffering that goes beyond ordinary suffering 1 . In addition, the doctrine of criminal law of the period under review included particularly cruel methods of murder: preliminary mutilation, poisoning with a slow-acting poison, infliction of a large number of wounds, burning alive, causing death by thirst and hunger, preliminary torture." However, in general, criminal law itself The legislation of the RSFSR of this period did not disclose the content of special cruelty.In the Criminal Code of the RSFSR of 1960, in addition to an aggravating circumstance characterizing the social danger of an act, special cruelty was enshrined in some articles of the Special Part as a qualifying

circumstance (clause “g” of Article 102, clause “a” of Article 268 of the Criminal Code of the RSFSR 1960). In the science of criminal law, some authors recommended applying paragraph “d” of Article 102 of the Criminal Code of the RSFSR, based on the explanation in the explanatory dictionary of the Russian language of the term “cruelty”, without delimiting this concept from “special cruelty” 1. In a commentary to the Criminal Code of the RSFSR of 1960, M.D. Shargorodsky and N.A. Belyaev, the sign of special cruelty is not revealed in sufficient detail, however, it is filled with specificity. Thus, it states that “special cruelty will be a method of murder in which the victim is subjected to torture before death (for example, inflicting a large number of wounds, torture, poisoning with a painful poison, torture before death, cutting a person alive into pieces) or other circumstances characterizing the ruthlessness of the crime." In the current Criminal Code of the Russian Federation of 1996, the legislator, in terms of mentioning the sign of special cruelty, took it from the previous code as an aggravating circumstance, and as a way of committing qualified murder. In addition, the sign of special cruelty began to be used in qualified types of crimes such as: causing grievous harm to health, moderate harm to health, rape, violent acts of a sexual nature.The Plenum made a significant contribution to the implementation of a unified interpretation of assessment categories in the process of qualifying murders in its resolution Supreme Court RF. In accordance with and. 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” special cruelty is associated both with the method of murder and with other circumstances indicating the manifestation of special cruelty by the perpetrator. First of all, from the content of this resolution it follows that the courts have an obligation, when considering such cases, to be guided by two criteria: objective (the method of committing the crime, other objective circumstances) and subjective (the intent of the perpetrator, which covered the commission of murder with particular severity), which was not the case in the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 No. 15. However practical solution It is still difficult to explain why this is due to the existence of a wording that defines the commission of a murder with particular cruelty as “other circumstances indicating the manifestation of particular cruelty by the perpetrator.” Analysis of modern scientific literature showed a lack of uniformity in the understanding of special cruelty. In the science of criminal law, its definition is widespread.

Lenis as special suffering. Some jurists interpret special cruelty as an impact that causes lifetime suffering. Others argue that special cruelty means: exceptional, strong^, extreme, exceptionally severe, etc. Such definitions contribute little to understanding the sign of special cruelty, since they are purely evaluative in nature. Based on this, the content of such adjectives is revealed through other words. So, A.N. Ponov, characterizing special cruelty as intense suffering, adds a sign of extension in time, duration. A.G. Menshikov, in addition to the duration of pain, also considers intensity to be significant signs of special cruelty. She argues that “it is precisely a certain amount of intensity and duration of pain that characterizes it as special, which in turn allows us to state the presence of special suffering, which is the result of special cruelty.” She believes that the amount of pain experienced should be determined by medical professionals, since they have in their arsenal all the necessary methods, techniques and means for this.

Thus, the conducted study of the evolution of the concept of “Special Cruelty” in the doctrine of criminal law allows us to draw the following conclusions:

Firstly, the theoretical and judicial interpretation of the evaluative concept of “special cruelty” is filled with a debatable component. The sign of special cruelty was introduced into criminal legislation back in 1926 and continues to operate to this day, and is applicable to all crimes, due to the fact that it is a circumstance aggravating responsibility for crimes. Neither scientists nor judges were able to come to a common understanding of the concept in question, and the legislator never established its legal definition.

Secondly, despite the popularization of the topic of special cruelty, when studying various opinions of legal scholars, there was no qualitative definition of the term special cruelty, which was primarily characterized by specifics and did not raise questions for the researcher. Of course, it is difficult to list the entire range of actions of a criminal that could be classified by a law enforcement officer as “special cruelty,” however, a condensed interpretation of the terminology can lead to an even more expanded interpretation. Consequently, the concept of special cruelty is evaluative, and it is not possible to formulate signs that characterize it for all situations.

• See: Trainin A., Menshagin V., Vyshinskaya 3. Criminal Code of the RSFSR. A comment. M., 1946. P. 187.
• "See: Ratinov A.R., Mikhailova O.Yu. Cruelty as a legal and moral problem // Issues in the fight against crime. M., 1985. Issue 42. P. 9.

Murder in itself is a cruel crime, because as a result of it a person loses the most valuable thing - his life.

However, even murder is divided into different categories depending on the presence or absence of mitigating or aggravating circumstances.

Article 105 of the Criminal Code of the Russian Federation describes murder with extreme cruelty as one of the types of qualified crime.

At the same time, the article itself does not decipher what actions are considered cruel, and how the fact of its manifestation will be proven.

General concept of murder

Murder is the intentional killing of another person. This definition is contained at the beginning of Art. 105 of the Criminal Code of the Russian Federation, and it the best way describes the essence of the criminal act.

For all other types of murders, which are not characterized by direct intent, there are separate articles in the Criminal Code of the Russian Federation. They relate to the regulation of murders due to negligence, in a state of passion, when the limits of necessary defense are exceeded.

Premeditated murder involves only one type of responsibility - actual imprisonment.

The amount of imprisonment will be determined based on the characteristics of the offense. For ordinary murder without aggravating circumstances, the convicted person will be sentenced to 6-15 years in prison.

Causing death with particular cruelty is reflected in paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.

It is represented by one item from a large list of aggravating circumstances, in the presence of which a more severe punishment will be imposed.

To qualify a murder committed with cruelty, it is necessary to prove the fact that the offender was aware that by his actions he was causing suffering to the victim before his death.

This fact cannot always be confirmed by the nature of the wounds on the victim’s body. Therefore, often the forensic expert does not assume that dead person before his death he experienced severe suffering and torment.

The corpus delicti of a murder committed with particular cruelty is similar to the usual corpus delicti of the intentional deprivation of human life.

However, there are still differences in it:

What is cruelty? Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1 provides explanations as to what actions can be qualified as cruelty shown to the murdered person.

Their list looks like this:

In this case, death can often occur from painful shock, which is quite realistic to be recorded by a medical examination.

Various types of mockery of the body of the deceased are not considered cruelty during a murder.

Neither the dismemberment of a corpse in order to cover up traces, nor the rape of the deceased, nor other facts of abuse of him are recognized as cruelty under the Criminal Code of the Russian Federation.

This is explained by the fact that by the time they are committed, the person is already dead and does not experience any suffering.

But there are exceptions here too. In particular, if the criminal did not precisely understand the moment of his victim’s death, and under the influence of the stream of aggression that gripped him, began to cut off the person’s ears, fingers, or scalp him, this will be recognized as mockery not of the corpse, but of the victim.

The question of how much they give for murder with particular cruelty is decided exclusively by the court..

To make a decision, the judge must take into account all the evidence in the case so that there is not the slightest doubt that special cruelty was applied to the victim.

Along with the murder of several victims, a minor or helpless person, a pregnant woman and other aggravating circumstances, murder is punished with particular cruelty:

• Imprisonment from 8 to 20 years;
• Life imprisonment;
• The death penalty.

Along with a prison term, the convicted person is subject to a restriction of freedom for a period of up to 2 years for murder with special cruelty.

A moratorium has been imposed on the death penalty in our country. However, this does not mean at all that it cannot be lifted at any time, the execution returned, and all those sentenced to life imprisonment will be shot.

The preliminary investigation of the case must collect the necessary set of evidence so that the judge subsequently has no doubts that the crime is correctly classified under paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.

For this purpose, investigators and inquiry officers must collect the following information:

To do this, it is necessary to carry out investigative measures:

• Interrogations of the suspect and witnesses;
• Checking readings on site;
• Inspection of the scene of the incident;
• Examination of the body of the corpse and material evidence.

Typically, the nature of the injuries on the victim's body, combined with the defendant's testimony, provide a clear picture of what happened to an experienced investigator. The particular cruelty of the deed is easily detected.

Judicial practice is full of various murders, including those recognized as being committed with particular cruelty.

As a rule, most of these crimes are committed under the influence of alcohol or drugs, or in domestic conflicts.

Since, for example, murder for mercenary reasons is usually carried out with a cold head.

An example of a murder with particular cruelty could be the following real case:. Two men living in communal apartment, V evening time drank. Their roommate, who had a television, refused to allow them to watch it. After this, the men attacked the neighbor, tied him up, hung him by his feet in the toilet with a rope, and tried to drown him in the toilet. Overall, he suffered numerous injuries. According to the examination, death was caused by a cerebral hemorrhage; the victim was not drowned. Based on the results of the trial, both criminals were sentenced to 15 years in prison each. They were released a year ahead of schedule.

Another case. A man leading an antisocial lifestyle began visiting a compassionate old woman for a meal. For personal reasons, the woman fed the needy in her village. One day the man visited the old woman again, after which the neighbors discovered her body in the morning. The grandmother died of a heart attack from numerous blows, but at the same time she was completely naked and with torn ears. The commission of sexual acts against the grandmother was not proven. The fact that the defendants were beaten was beyond doubt. The convict denied everything, but was still sentenced to 14 years in prison.

Murderers pose an increased danger to society and, by law, must be isolated from it.

A particular danger to others is posed by those who, realizing the cruelty of their actions against an innocent victim, deliberately continued to kill him in brutal and painful ways.

Introduction

Human life is the most valuable and most fragile gift of nature. Demographers say that half of the world's inhabitants die prematurely and a significant part of them as a result of violence. An example of violent death is murder. Murder is recognized as the most serious crime and is one of those crimes that often causes serious difficulties in investigation, legal qualification and sentencing. In this work, I will write about two qualifying signs of murder, namely the sign of “special cruelty” and “generally dangerous method.”

This topic is relevant and its relevance lies in the fact that there is still no single approach to the application of these qualifying signs of murder, both from scientists and from practitioners, because the emergence of various issues when qualifying murders, they are a consequence of the emergence of various situations of assault and the complexity of the circumstances that need to be taken into account.

The purpose of the work is to consider the content of the qualifying signs of murder, namely “special cruelty” and “generally dangerous method”.

The main objectives of the work are to study the essence of the concepts of “special cruelty” and “generally dangerous method”, identifying circumstances indicating the presence of a murder committed with “special cruelty” and a murder committed “generally dangerous method”, as well as problems arising in law enforcement practice .

Chapter I. Murder committed with “special cruelty.”

The concept of “special cruelty”.

In accordance with paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of murder”, when qualifying murder under paragraph “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation, one must proceed from the fact that the concept of special cruelty is associated with both the method murder, as well as with other circumstances indicating the manifestation of particular cruelty by the perpetrator. To correctly qualify this crime, it is necessary to reveal the essence of the concept of “special cruelty”.

Many scientists, when exploring the concept of “special cruelty,” turn to explanatory dictionaries Russian language. In particular, in the dictionary of S.I. Ozhegov’s cruelty is revealed through the concept of “cruel”, i.e. extremely harsh, ruthless, merciless. Therefore, it can be assumed that special cruelty presupposes the highest degree of manifestation of ruthlessness and mercilessness when committing a crime. What degree of cruelty must be in order for it to be considered special cruelty?

In the criminal law literature there are statements on this issue: different opinions. Some believe that “cruelty” and “special cruelty” are equivalent concepts. But most scientists are trying to show the difference between these concepts.

According to S.K. Pitertsev's murder with particular cruelty should be characterized by an extreme degree of cruelty - super-ordinary, out-of-the-ordinary, exceptional cruelty.

G.I. Chechel argues that special cruelty is a higher qualitative and quantitative aspect of an act in relation to the concept of cruelty. He criticizes such formulations of special cruelty as “monstrous heartlessness”, “astounding severity”, “extraordinary cruelty”, “manifestation of bestial instincts” and others, since they are vague and indefinite, do not reveal the concept of “special cruelty” in any way and do not give anything practice.

Special literature notes that classifying an act as “simply” or particularly cruel, or not cruel at all, depends not only on the assessments of the subject, his social affiliation and social status, moral principles and views, intelligence, culture, etc.

The solution to this issue depends on the moral and psychological atmosphere in society and its values, on the level of morality and ideas about good and evil and the limits of violence in that social group, to which that belongs executive which should answer it.

Cruelty is a purely human trait; it does not exist in nature. A person who kills another person in order to achieve some of his base goals shows cruelty because he realizes the immorality of his act.

Thus, a specialist in the field of studying criminal cruelty Yu.M. Antonyan defines cruel behavior as the intentional and meaningful infliction of torture and suffering on another person for their own sake or the achievement of other goals, or as a threat of such infliction, as well as actions that the subject allowed or should have foreseen that such consequences would occur. He came to the conclusion that only those acts are considered cruel, the painful nature of which is recognized by the subject and is part of his intentions, i.e. they must be intentional.

Violent behavior (cruelty) is the intentional infliction of physical or moral suffering. We can distinguish such types of cruel behavior as: torment, torment, torture, sadism, mockery. These concepts should be distinguished.

1) Torment - causing suffering through prolonged deprivation of food, drink and warmth, or placing or leaving the victim in conditions harmful to health and other similar actions.

2) Torture - actions associated with repeated or prolonged infliction of pain - pinching, cutting, causing multiple but minor injuries with blunt or sharp objects, exposure to thermal factors and other similar actions.

Therefore, torment is the infliction of suffering, and torture is the infliction of pain. Suffering and pain are essentially equivalent concepts, but in this case, suffering can be not only physical, but also mental.

3) Torture is any act by which severe physical pain or suffering, physical or mental, is intentionally inflicted on a person, at the instigation of the subject or by the subject himself, for the purpose of obtaining from the victim information or a confession as punishment for actions he has committed or is suspected of having committed.

4)Bullying is evil, insulting to make fun of someone or something

5) Sadism is a sexual perversion in which the sexual feeling is satisfied by inflicting physical pain on another person, the desire for cruelty, enjoying the suffering of others.

Thus, cruelty includes torment, torture, bullying, and sadism, because all these definitions reveal different facets of one phenomenon - the infliction of physical or moral (mental) suffering. Therefore, we can conclude that Special cruelty is an intentional action (or inaction) that accompanies or follows a violent crime, not necessary for its commission and the onset of its usual consequences, consisting of causing additional, usually severe, physical or mental suffering."