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Police and Investigative Activity
Reference:

Factors that affect the qualification of murder in excess of the measures of detention of the person who committed the crime

Agafonov Viktor Vladimirovich

Postgraduate student of Nizhny Novgorod Academy of the Ministry of Internal Affairs of the Russian Federation

603051, Russia, Nizhny Novgorod region, Nizhny Novgorod, Bogatyrskaya str., 14

viktor.agafonov.9292@mail.ru

DOI:

10.25136/2409-7810.2023.2.40534

EDN:

LTSLLO

Received:

19-04-2023


Published:

05-07-2023


Abstract: The application of the norm enshrined in Article 38 of the Criminal Code of the Russian Federation raises questions and discussions not only in the doctrine of domestic criminal legislation, but also in investigative and judicial activities. Currently, in the science of criminal law, there are different positions on the issue of the right to take the life of a person who has violated the law during his detention, which may negatively affect the application of legislation. In the study, the author used the dialectical method as a universal method of scientific cognition, which allowed to consider phenomena and processes in their interrelation and interaction. In addition, we have used a number of other methods of scientific research, such as formal legal, comparative legal, statistical, structural and system methods. The purpose of delivering a person who has committed a criminal offense to the authorities excludes the possibility of causing death to the detainee, in case of causing death during detention, these actions will in any case be illegal. Delivery to the authorities means that a living person must be delivered to the authorities. Thus, the deprivation of human life is not provided for in Article 38 of the Criminal Code of the Russian Federation. The author concludes that the rule on lawful infliction of harm during the detention of a person who has committed an act provided for by criminal law should be expanded and allowed in exceptional cases to cause death to an attacker, which is necessary in the interests of law-abiding citizens, society.


Keywords:

criminal law, detention of a person, murder, exceeding the measures, criminal law act, delivery to authorities, suppression of crimes, Russian legislation, detaining, detained

This article is automatically translated.

One of the main reasons that destabilize the development of the state is crime. The negative consequences of this factor not only complicate the implementation of socio-economic reforms, but also pose a danger to the state as a whole. Thus, according to the Ministry of Internal Affairs (hereinafter ? the Ministry of Internal Affairs of Russia), 2058476 crimes were registered in 2017, 312278 crimes in 2018, 2024337 crimes in 2019, 2044221 crimes in 2020, 2004404 crimes in 2021, 1823348 crimes from January to November 2022 [1]. From these statistics, we see that the number of only officially registered acts provided for by criminal law remains at a high level and practically does not decrease (with the exception of the strange indicator of 2018, the assessment of which requires separate analytical work).

Currently, law enforcement agencies are experiencing difficulties with recruiting their units, which in the future cannot but affect quantitative and qualitative indicators in the fight against crime. So, at a speech in the State Duma, Interior Minister Vladimir Kolokoltsev noted that at the moment in some regions of the country the shortage of personnel is 30% [2]. Also in 2022, the territory of our country increased by four subjects. 4 Federal Constitutional laws were adopted on the entry into the Russian Federation of the Donetsk and Lugansk People's Republics, as well as the Zaporozhye and Kherson regions. [3]. Temporary police departments have already been organized in the Donbass, temporary departments of internal affairs bodies have been established in the Zaporozhye and Kherson regions. But soon there will be permanent ones. According to estimates of the Ministry of Internal Affairs of Russia, more than 50 thousand police officers will work in the new Russian regions [4]. Questions remain open as to how long these personnel decisions will take place, from where, with a catastrophic shortage in the Ministry of Internal Affairs of Russia, competent specialists will be found who will fight a new type of terrorist crime and well-trained sabotage and intelligence groups, how long it will take for the new units to work as a single well-coordinated mechanism. In this regard, the awareness of ordinary citizens about the right to harm when detaining a person who has committed a crime is more relevant than ever. To date, there is a norm in the criminal law of the Russian Federation, enshrined in Article 38 of the Criminal Code of the Russian Federation, which gives the right to both officials and ordinary citizens in exceptional cases to cause harm when detaining persons who have committed acts provided for by criminal law.

Article 38 of the Criminal Code of the Russian Federation regulates the conditions under which the said harm should be recognized as lawful. Among these requirements are:

a) the commission of a crime by the detained person;

b) harm to the attacker is caused in order to deliver the latter to the authorities and prevent the possibility of committing new socially dangerous acts, if it was not possible to detain such a person by other means;

c) the harm caused to the criminal must not exceed the limits necessary for detention.

 If these conditions are not met, then causing harm will be considered a crime, even if it was committed with the aim of preventing an illegal act or detaining a criminal.

For the first time, responsibility for murder committed in excess of the measures necessary to detain a person who has committed a criminal offense was provided by the legislator in the Criminal Code of the Russian Federation No. 64-FZ of 13.06.1996, which entered into force on 01.01.1997, and is fixed in Part 2 of Article 108 of the Criminal Code of the Russian Federation. Since the judicial authorities did not have a unified judicial practice and many questions were raised by the provisions of both Part 2 of Article 108 of the Criminal Code of the Russian Federation and Article 38 of the Criminal Code of the Russian Federation, the resolution of the Plenum of the Supreme Court of the Russian Federation of 27.09.2012 No. 19 "On the application by courts of legislation on necessary defense and causing harm when detaining a person who committed a crime" was adopted (further ? resolution of the Plenum of 27.09.2012 No. 19), which, according to its developers, was supposed to solve all the controversial points and eliminate existing gaps in the enforcement of these articles.

It should be recognized that both before and after the adoption of the resolution of the Plenum of 27.09.2012 No. 19, among scientists and law enforcement officers, the following was and remains one of the most controversial issues: is it lawful to cause death to a detainee or not [5, p. 230]?

In their scientific works, some scientists pointed out that the purpose of delivering a person who committed a criminal offense to the authorities excludes the possibility of causing death to the detainee, in case of causing death during detention, these actions will in any case be illegal [6, p. 135; 7, p. 138; 8, p. 248-249]. N. A. Lopashenko believed that only in exceptional cases the detention of a criminal is possible by depriving the latter of his life, although the simultaneous achievement of the goals of detention specified in the law is impossible, this fact does not exclude the application of Article 38 of the Criminal Code of the Russian Federation [9, p. 638]. E. L. Sidorenko and M. I. Kambambetov believed that in some cases it is possible to cause death to an attacker during detention, but they should be considered according to the rules of necessary defense [10, p. 168]. A.V. Naumov and A.G. Kibalnik noted about causing death to a criminal: "the exact interpretation of Part 1 of Article 38 of the Criminal Code of the Russian Federation indicates that a person who has violated the law, under no circumstances can be deprived of his life without exceeding the limits of the harm allowed during detention, because a living person is delivered to the authorities" [11, p. 231]. A.P. Dmitrienko and N.G. Kadnikov they believed that causing death during detention is unacceptable, there is a conflict between the norms of the criminal law and the Federal Law of 07.02.2011 No. 3-FZ "On Police" [12, p. 150].

V.V. Orekhov [13, p. 120], G.V. Bushuev [14, p. 65-66], I.V. Korobitsin [15, p. 153], believed that causing death to a detainee could occur in exceptional cases when grave or especially grave crimes of a predominantly violent nature are committed. V.S. Ustinov pointed out that deprivation of liberty the life of a detainee is an extreme measure applied to the facts of committing serious crimes and especially dangerous criminals, when it is not possible to detain them in any other way [16, p. 192].

It seems that in the future, with the expansion of the content of Article 38 of the Criminal Code of the Russian Federation, causing death during the detention of a person who has violated the law should not depend on the category of crime. In order to determine the legality / illegality of the actions committed by the detainee, it is necessary to find out all the circumstances of what happened, in particular, it is necessary to scrupulously establish all the actions taken by the attacker. In the text of the criminal law, there is no such condition of legality as a category of crime that must be taken into account when taking the life of a detainee. [17, p.118]. In practice, it is difficult to distinguish crimes from other socially dangerous acts, while, according to the judgments of these authors, the detainee must also determine the category of the crime. This position in practice will negate the initiative to detain criminals, especially ordinary citizens who have shown activity in countering crime.

V. V. Orekhov allowed the deprivation of life of a person who committed a crime, not only in the process of detaining him for a serious or especially serious crime, but also regardless of the category of the crime. The scientist pointed out that there are situations of detention with the use of weapons to defeat intruders when they escape from places of deprivation of liberty (Part 1 of Article 313 of the Criminal Code of the Russian Federation) or poaching with causing major damage (paragraph "a" of Part 1 of Article 256 of the Criminal Code of the Russian Federation). Here, the acts of malefactors are crimes of medium and small gravity. Reinforcing his position, the scientist cited the following example from judicial practice: when detaining persons engaged in poaching in the waters of the Russian Federation, after repeated warning shots to stop, weapons were used to kill the latter, as a result of which one of the attackers died. As a result, the actions of the border service officers were recognized as legitimate [18, p. 121].

In our opinion, this example is untenable for the following reasons: in this case, we are not talking about the intentional deprivation of the life of the detained criminal, the example given refers to the detention / defeat of the vessel, the author substitutes criminal concepts. In this case, there is a paramilitary operation to stop the vessel by causing harm to it, and in Article 38 of the Criminal Code of the Russian Federation, the situation of detaining a criminal, that is, a living person, is considered. This article is valid if the harm is intentionally caused to a specific person who has committed a crime, and not to a vehicle.

 In accordance with Article 38 of the Criminal Code of the Russian Federation, currently the purposes of detaining a person who has violated the law are to bring him to the authorities and prevent him from committing new acts prohibited by criminal law. Between these goals in the criminal law there is a connecting union "and", and not a disconnecting union "or". Thus, the legislator directs the judicial authorities to recognize the harm caused to the attacker as legitimate only if it was caused to achieve a "two-pronged goal" (two goals at the same time). Delivery to the authorities means that a living person must be delivered to the authorities. Thus, deprivation of human life is not provided for in Article 38 of the Criminal Code of the Russian Federation.

At the same time, when improving the doctrine of criminal law, it is advisable to expand the understanding of the purpose specified in Article 38 of the Criminal Code of the Russian Federation and include in it the delivery to the authorities of any person, including those liquidated in the process of detention. Modern realities require a tough position of the legislator regarding the right in exceptional cases of deprivation of life of an attacker during his detention. Since the beginning of the special military operation, the lives of residents of the territory of the Russian Federation (especially those bordering with Ukraine) are in increased danger. The Ukrainian authorities are waging a full-scale war not only on the front line, they are also trying to destroy as many Russian citizens as possible, including on the territory of the Russian Federation. Thus, a well-armed group of Ukrainian saboteurs was liquidated while trying to enter the Bryansk region. The militants carried German submachine guns, ammunition, communication and navigation devices, four homemade bombs with a total capacity of about 40 kilograms of TNT [19].

Another resonant example is the murder of journalist Daria Dugina. The car in which she was traveling was blown up near the village of Bolshye Vyazemy, Moscow region. The journalist died on the spot from multiple mine-explosive injuries. The FSB found that the murder was "prepared and committed by the Ukrainian special services" (SBU), and its direct perpetrator was a citizen of Ukraine, 43-year-old Natalia Vovk [20]. The problem of the survival of Russian citizens, the preservation of national identity, and the savings of Russia has become more acute than ever before over the past eight decades, so the legislator needs to expand the content of Article 38 of the Criminal Code of the Russian Federation ? to include in it the possibility of liquidation during the detention of criminals-saboteurs/ terrorists (if otherwise it is impossible to detain them) for the delivery of their bodies to authorities and further investigative actions. The first step that the legislator should take: in Part 1 of Article 38 of the Criminal Code, instead of the union "and" when formulating the purposes of detention, an alternative to the unions "and", "or" (and (or)) should be used. This will avoid mistakes in law enforcement when assessing the direction of the detainee's actions.

At the moment, in accordance with the letter of the criminal law, it is prohibited to take the life of a detained criminal. In the case of deprivation of life with direct intent (for example, a shot from a sniper weapon to kill), it should be considered as an unqualified murder. We believe that the rule on lawful infliction of harm during the detention of a person who has committed an act provided for by criminal law should be expanded and allowed in exceptional cases to cause death to a criminal (for example: to destroy a terrorist/saboteur who is active and trying to escape). Expanding the powers of detaining persons is necessary in the interests of law-abiding citizens, society, so that they are more protected, and law enforcement agencies have more levers to protect and protect them, so that ordinary citizens can exercise their right to safe living, protect and protect themselves and other people (along with the necessary defense), know about their right detain anyone and everyone who has violated the law, up to causing harm to a person who has committed a criminal offense.

Taking into account the above, the author suggests that Part 2 of Article 38 of the Criminal Code of the Russian Federation be supplemented and stated as follows:

Part 2 1 of Article 38 of the Criminal Code of the Russian Federation. In exceptional cases, a person who commits/has committed a particularly serious crime provided for by this law, if it is impossible to detain the latter, is allowed to cause any harm necessary for detention up to causing death to the detainee.

 

 

 

References
1. Statistical data on the state of crime. ‒ Text: electronic // Official website of the Ministry of Internal Affairs of Russia. ‒ URL: https://xn--b1aew.xn--p1ai/dejatelnost/statistics (date of access: 01/05/2023).
2. State Duma of the Federal Assembly of the Russian Federation. ‒ Text: electronic // Official website of the Ministry of Internal Affairs of Russia. ‒ URL: http://duma.gov.ru/news/55541/ (date of access: 01/05/2023).
3. Treaties were ratified and laws were adopted on joining the DPR, LPR, Zaporozhye and Kherson regions into Russia. ‒ Text: electronic // Official website of the State Duma of the Russian Federation. ‒ URL: http://duma.gov.ru/news/55407/ (date of access: 01/31/2023).
4. The head of the Ministry of Internal Affairs of Russia told how many police officers will work in the new regions of the country. ‒ Text: electronic // “Together RF” https://vmeste-rf.tv/news/glava-mvd-rf-rasskazal-skolko-politseyskikh-budet-rabotat-v-novykh-regionakh-strany/ (date of access: 01/05/2023).
5. Criminal law. In 2 vols. T. 1. General part / holes. ed. A.V. Naumov, A.G. Kibalnik. ‒ 5th ed., revised. and additional ‒ Moscow: Yurayt, 2017. 410 p.
6. Yakunina S.A. Causing harm during the detention of a person who committed a crime: dis. … cand. legal Sciences. Rostov-on-Don, 2005. 214 p.
7. Shuvgalidze T.G. Necessary defense. Tbilisi: Metsniereba, 1966. 158 p.
8. Criminal law General part. Crime. Academic course. In 10 t. T. X. Circumstances excluding the criminality of the act / ed. doc. legal sciences, prof. ON THE. Lopashenko. Moscow: Yurlitinform, 2016. 512 p.
9. Lopashenko N.A. Murder Research: Law, Doctrine, Judicial Practice: Monograph. Moscow: Yurlitinform, 2018. 656 p.
10. Sidorenko E.L., Kambambetov M.I. Armed violence: criminal law and criminological assessment: monograph. Moscow: Yurlitinform, 2014. 288 p.
11. Criminal law. In 2 vols. T. 1. General part: a textbook for academic bachelor's degree / otv. ed. A.V. Naumov, A.G. Kibalnik. ‒5th ed., revised. and additional Moscow: Yurayt, 2017. 410 p.
12. Commentary on the Criminal Code of the Russian Federation: scientific and practical. Article by article 2nd edition, revised and enlarged / ed. S.V. Dyakova, N.G. Kadnikov. "Jurisprudence", 2013. 521 p. ‒ Text: electronic // Information and reference system "Consultant Plus" ‒ URL: http://www.consultant.ru / (date of access: 13.02.2023).
13. Orekhov V.V. Necessary defense and other circumstances excluding the criminality of the act. St. Petersburg: Jurid. Center Press, 2003. 217 p.
14. Bushuev G.V. Social and criminal-legal assessment of harm to a criminal during detention. Gorky, 1976. 87 p.
15. Korobitsin I.V. Causing harm during the arrest of a person who committed a crime, as a circumstance excluding the criminality of the act: dis. … cand. legal Sciences. Moscow. 2002. 174 p.
16. Commentary on the Criminal Code of the Russian Federation (article by article), 4th edition, revised and supplemented / ed. A.A. Chekalina, V.T. Tomina, V.V. Sverchkov. Yurayt, 2007. 692 p. ‒ Text: electronic // Information and reference system "Consultant Plus" ‒ URL: http://www.consultant.ru / (date of access: 13.02.2023).
17. Plamadeale I.G. Causing harm during the detention of a person who committed a crime: dis. … cand. legal Sciences. Moscow. 2007. 190 p.
18. Orekhov V.V. Necessary defense and other circumstances excluding the criminality of the act. St. Petersburg: Jurid. Center Press, 2003. 217 p.
19. A group of saboteurs was destroyed while trying to penetrate the territory of the Bryansk region-Text: electronic // Channel One website-URL: https://www.1tv.ru/news/2022-12-26/444242-gruppa_diversantov_unichtozhena_pri_popytke_proniknut_na_territoriyu_bryanskoy_oblasti (date of access: 05.01 .2023).
20. The murder of Darya Dugina became international ‒ Text: electronic // Kommersant website ‒ URL: Access mode: https://www.kommersant.ru/doc/5650550 (date of access: 01/05/2023).

First Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of the research in the article submitted for review, as its name implies, are the factors that affect the qualification of murder when the measures of detention of the person who committed the crime are exceeded. The stated boundaries of the study are fully respected by the author. The methodology of the research is not disclosed in the text of the article, however, it is obvious that the scientists used universal dialectical, logical, historical, statistical, formal-legal, hermeneutic research methods. The relevance of the research topic chosen by the author is defined as follows: "... the number of only officially registered acts provided for by criminal law remains at a high level and practically does not decrease ... Currently, law enforcement agencies are experiencing difficulties with recruiting their units, which in the future cannot but affect quantitative and qualitative indicators in the fight against crime. ... In this regard, the awareness of ordinary citizens about the right to harm when detaining a person who has committed a crime is more relevant than ever." Additionally, the scientist needs to list the names of the leading experts who have been engaged in the study of the problems raised in the article, as well as reveal the degree of their study. The paper does not say what the scientific novelty of the study is. In fact, it manifests itself in a number of reasoned proposals by the scientist on amendments and additions to Article 38 of the Criminal Code of the Russian Federation ("... in the future, with the expansion of the content of Article 38 of the Criminal Code, causing death during the detention of a person who has violated the law should not depend on the category of crime"; "... it is advisable to expand the understanding of the purpose specified in Article 38 of the Criminal Code of the Russian Federation, and include in it the delivery to the authorities of any person, including those killed in the process of detention"; "The first step that the legislator should take: in Part 1 of Article 38 of the Criminal Code of the Russian Federation, instead of the union "and " when formulating the goals of detention, an alternative to the unions "and", "or" (and (or)). This will help to avoid mistakes in law enforcement when assessing the direction of the detainee's actions"). The author's recommendations aimed at improving the current criminal legislation certainly deserve the attention of the readership (both theorists and practitioners). The scientific style of the research is fully sustained by the author. The structure of the work is quite logical. In the introductory part of the article, the scientist substantiates the relevance of his chosen research topic. In the main part of the work, the author carries out a critical analysis of the current Article 38 of the Criminal Code of the Russian Federation, showing its shortcomings and suggesting ways to improve it. The final part of the article contains general conclusions based on the results of the study. The content of the work fully corresponds to its title, but is not without some drawbacks. So, the author needs to clarify the wording of the sentence: "However, the detainee has the right to cause harm only if certain conditions presented in this article are met, which immeasurably harming the detainee transforms a socially useful action into a crime" (it is not subtracted). The final part of the work needs a little revision, which will be discussed in more detail below. The bibliography of the study is presented by 20 sources (dissertation research, monographs, commentaries, textbooks, analytical and statistical materials). This is enough from both formal and factual points of view. The nature and number of sources used in writing the article allowed the author to reveal the research topic with the necessary completeness and depth. The provisions of the work are illustrated by examples from investigative practice. There is an appeal to the opponents (S. A. Yakunina, A.V. Naumov, A.G. Kibalnik, A.P. Dmitrienko, N.G. Kadnikov, V. V. Orekhov, etc.) and it is quite sufficient. The scientific discussion is conducted by the author correctly; his judgments on controversial issues are reasoned to the necessary extent. The conclusions of the study are available, and certainly deserve the attention of a potential readership ("At the moment, in accordance with the letter of the criminal law, it is prohibited to take the life of a detained criminal. In the case of deprivation of life with direct intent (for example, a shot from a sniper weapon to kill), it should be considered as an unqualified murder. We believe that the rule on lawful infliction of harm during the detention of a person who has committed an act provided for by criminal law should be expanded and allowed in exceptional cases to cause death to a criminal (for example: to destroy a terrorist/saboteur who is active and trying to escape. Expanding the powers of detainees is necessary in the interests of law-abiding citizens, society, so that they are more protected, and law enforcement agencies have more levers to protect and protect them, so that ordinary citizens can exercise their right to safe living, protect and protect themselves and other people (along with the necessary defense), and know about their right to detain anyone and everyone who has violated the law, up to causing harm to a person who has committed a criminal offense"), but some of them should be specified. In particular, the author needs to offer a clear and precise formulation of the relevant criminal law norms of Article 38 of the Criminal Code of the Russian Federation, which will be a natural result of his analytical work. The article needs additional proofreading by the author. It contains typos, syntactic and stylistic errors. The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of criminal law, criminal procedure and criminalistics, provided that it is finalized: additional justification of the relevance of the research topic chosen by the scientist, disclosure of its methodology, clarification of certain provisions of the work and some conclusions based on the results of the study, elimination of violations in the design of the article.

Second Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of the study. The subject of the study of the peer-reviewed article "Factors that affect the qualification of murder in excess of the measures of detention of a person who committed a crime" is "the norm enshrined in Article 38 of the Criminal Code of the Russian Federation, which entitles both officials and ordinary citizens in exceptional cases to cause harm when detaining persons who committed acts provided for by criminal law." In the course of his research, the author comes to the reasoned conclusion that "the norm of lawful harm during the detention of a person who has committed an act provided for by criminal law should be expanded and allowed in exceptional cases to cause death to a criminal (for example: to destroy a terrorist/saboteur who is active and trying to escape)." Research methodology. The methodological apparatus of the article consists of modern methods of scientific cognition: historical, formal-logical, legal-technical, formal-dogmatic, comparative jurisprudence, etc. The author of the article also used such scientific methods and techniques as deduction, modeling, systematization and generalization. The article used a combination of theoretical and empirical information. Relevance. The topic of the reviewed article is very relevant. As the author correctly notes, "modern realities require a tough position of the legislator regarding the right in exceptional cases to take the life of an attacker during his detention." The topic of the article is not only of scientific importance, but also has practical significance. Scientific novelty. Although the problem raised by the author is not completely new to legal science, nevertheless, the aspect of the problem chosen by the author has elements of scientific novelty, the conclusions and suggestions of the author are reasoned and deserve attention. Style, structure, content. The article is written in a scientific style, using special legal terminology, and contains an analysis of statistical data indicating the relevance of the problem. The article is structured. The material is presented consistently, competently and clearly. According to the content, the article reveals the topic stated by the author. Bibliography. The author has studied a sufficient number of sources on the topic, including publications of recent years (in particular, Internet resources). All bibliographic sources are designed correctly. Appeal to opponents. In the article, the author, in order to confirm his conclusions and substantiate his proposals, refers to the authoritative opinions of other scientists dealing with the qualification of harm (including death) during the detention of a person who committed a crime. All appeals to opponents are correct, decorated with links to the source of the publication. Conclusions, the interest of the readership. The reviewed article on the topic "Factors that influence the qualification of murder in excess of the measures of detention of a person who committed a crime" meets the established requirements for publications, is relevant, practically significant and has elements of scientific novelty. The article is recommended for publication in the journal "Police and Investigative Activities". The article may be of interest to both scientists in the field of criminal law and practitioners.