Problems of qualification of crimes against a person containing signs of hatred or enmity, as well as humiliation of human dignity

Bulbacheva Anna Aleksandrovna PhD in Law Senior Researcher at the Department of Planning and Control over Scientific Research of the Scientific and Research Center of the Academy of Management of the Ministry of Internal Affairs of the Russian Federation 125171, Russia, g. Moscow, ul. Zoi I Aleksandra, , 8 anit-b@mail.ru Other publications by this author

Kotyazhov Andrei Valer'evich PhD in Law Associate Professor of the Department of Criminal Law Disciplines of the Moscow State University named after K.G. Razumovsky (PKU) 109004, Russia, g. Moscow, ul. Zemlyanoi Val, 73 amonitor69@mail.ru Other publications by this author

State protection of human and civil rights and freedoms in the Russian Federation is guaranteed by the State. The state of criminal legal protection of the individual is the most important indicator of the effectiveness of the law enforcement system of the state.

Section seven "Crimes against the person" of the Criminal Code of the Russian Federation unites five chapters, including 52 articles in their content (Articles 105-157 of the Criminal Code of the Russian Federation).

The analysis of statistical data of the Federal State Institution "GIAC of the Ministry of Internal Affairs of Russia" showed that for the period 2015-2021 the number of crimes against the person significantly decreased from 409559 to 254128 (-38%). At the same time, the number of murders and attempted murders decreased to a lesser extent – from 11496 to 7332 (-36%), rapes or attempted rapes – from 3817 to 3457 (-9%) cases. It should also be particularly noted that the number of rapes in 2020 (3,535), in comparison with the indicator of 2019 (3,177), increased by 11% and in 2021 – continued to be very significant (3,457 crimes). Within the framework of the studied issues, the above information corresponds to the fact that immigrants from the CIS countries committed 36.4 thousand crimes on the territory of the Russian Federation in 2021, which is 5.9% more than in January-December 2020 ^[1].

Studying the results of scientific research on the subject under consideration Akhmedov U.N. ^[2], Veliev F.Z. ^[3], Kapitsa V.S.,^[4] Kiyatkina I.A. ^[5], Schneider L.G. ^[6], etc., information posted in official sources, as well as authoritative Internet portals of leading agencies, allows us to conclude that often such crimes are committed against people of a different nationality or religion, which directly correlates with signs of national or religious hatred or enmity or hatred or enmity against a social group, it is also important that recently the media often publishes information about high-profile crimes against the person committed as part of different ethnic groups containing signs of hatred or enmity, as well as humiliation of human dignity.

        The study of the results of scientific research on the issue under consideration, information posted in official sources, as well as authoritative Internet portals of leading agencies, allows us to conclude that such crimes are often committed against people of a different nationality or another religion, which directly correlates with signs of national or religious hatred or enmity or hatred or enmity against a social group.

        At the same time, the perpetrators, before committing the crimes in question, while on the territory of the states of which they are citizens, as a rule, did not commit such illegal acts, which, in our opinion, is primarily due to religious and cultural traditions and customs, as well as tribal relations (blood feud, elements of Sharia), as integral elements of the "cultural code".

       Of particular concern are the facts of group commission of crimes against a person motivated by racial, national or religious hatred or enmity, or motivated by hatred or enmity against any social group, including as part of organized groups.

       So, for example, in 2012-2014, a series of robberies and murders of motor vehicle drivers were committed on the section of the M4 "Don" highway in the territory of the Moscow region. During the preliminary investigation, it was established that Kodirov Sh., Ulugmuradov A., Khasanov U., Dodokhonov H. and Gulyamov Z. "together with other accomplices, they created a stable armed group with the aim of committing crimes, including attacks on citizens." The criminals called their group "jamaat" and killed people for ideological reasons, as "infidels". According to the verdict of the Moscow Regional Court of August 8, 2018, all of them were found guilty of the murders of 17 people and two attempted murders, as well as banditry, robbery, illegal manufacture and storage of weapons and theft of documents. As punishment, Kodirov, Ulugmuradov, Khasanov and Dodokhonov were sentenced to life imprisonment, and Gulyamov was sentenced to imprisonment for a term of 20 years. The Supreme Court of the Russian Federation recognized this sentence as lawful, justified and fair ^[7]. 

       The definition of "personality" is not defined in the criminal law. This situation makes it necessary to be guided by the definitions developed by linguists.

In our opinion, the concept of personality proposed by T.F. Efremova is more appropriate for solving the tasks of the criminal law, namely: "Personality is a set of properties inherent in a certain person and constituting its individuality and orientation^[8]. A person from the point of view of his character traits, behavior, social status" ^[8].

The first part of Article 2 of the Criminal Law establishes the category of "human and civil rights and freedoms" as an object of criminal law protection.

As a civil category, the concept of "citizen" is synonymous with the category of "natural person" ^[8], i.e. a person with a number of attributes and properties: name, age, citizenship, marital status.

At the same time, this understanding does not cover all aspects in the field of criminal law relations. Intentional killing of a child during the mother's pregnancy and during passage through the birth canal during childbirth by direct impact on his body, from the point of view of current legislation, cannot be recognized as murder, but is an abortion.

At the same time, a human fetus, from the moment of its complete expulsion (extraction) with signs of live birth (pulmonary respiration, palpitation, screaming, arbitrary muscle contractions, etc.) passes into the status of a newborn and becomes a potential subject of criminal law relations, simultaneously acquiring the right to life protected by criminal law. At the same time, such a newborn immediately after birth does not fully correspond to the civil legal category of "natural person", i.e. before the registration of the fact of birth in the registry office, does not have such a feature as name, citizenship, marital status, etc.

Thus, such legal categories as "citizen" and "individual" are not fully applicable in the regulation of criminal law relations.

In the context of the above, it should also be noted that such concepts as "person" and "personality" in the criminal law aspect, in our opinion, are not equivalent. The concept of "man" includes in its content the natural (biological) and philosophical and moral spheres. The "personality" – social, political and actually legal – expressed in its legal rights, duties and responsibilities.

When applying the norms of Section seven "Crimes against the person" of the Criminal Code of the Russian Federation, the category "person" can be fully applied within the framework of Articles 105-109 of the Criminal Code of the Russian Federation, i.e. crimes, the object of which is actually human life in its biological manifestation ^[9].

Accordingly, the object of crimes provided for in Articles 110-157 of the Criminal Code of the Russian Federation is directly a person's personality – a set of continuously developing psychological qualities of a person as a subject of social relations that cause the emergence of a complex of needs and motives that determine the main directions of his behavior.

            In our opinion, we should agree with V.S. Kapitsa who includes the following aspects in the content of the category "personality":

           - socio-demographic (gender, age, educational and material level, professional affiliation and occupation, marital status, income level, education);

            - social role (social status, social functions, citizenship, presence or absence of a place of residence);

- moral and psychological (intelligence, abilities, habits, emotional and volitional qualities, attitudes, needs, values, priorities and views, attitude to the norms of law and morality, social pathology (drug addiction, alcoholism)) ^[4]

In the context of the subject under consideration, it is also decisive that as qualifying circumstances in Articles 105 (Murder), 111 (Intentional infliction of serious harm to health), 112 (Intentional infliction of moderate harm to health), 115 (Intentional infliction of minor harm to health), 116 (Beatings) of Chapter 16 "Crimes against life and health" of Section seven "Crimes against the Person" ^[4] of the Criminal Code of the Russian Federation establishes the commission of these crimes on the grounds of political, ideological, racial, national or religious hatred or enmity or on the grounds of hatred or enmity against any social group.

In this case, several qualifying circumstances are called, the presence of one of which is sufficient to impute guilt to the accused.

Such motives are internal motives expressing the desire of the perpetrator to show his superiority and inferiority of the victim because of his belonging to a particular (other) nation, because of his race, his professing a certain religion (non-professing religion in general) or because of his political views or social origin and position and consequently express his hatred for to provoke hostility or discord, or to avenge apostasy or unwillingness to join any denomination, political or social group.

       In connection with the above, we cannot agree with F.Z. Veliyev that it is inappropriate to recognize the motive of hatred or enmity as an aggravating circumstance and proposing to exclude paragraph "e" from Part 1 of Article 63 of the Criminal Code of the Russian Federation ^[3]. Moreover, as the main argument, the author points out the absence of such a rule in the legislation of most foreign countries.

If such a crime is committed in the process of carrying out extremist activity by a person, the act, if there are grounds for it, may additionally qualify under Articles 280, 282, 282.1 of the Criminal Code of the Russian Federation. ^[4]

It should be noted that today, for the qualification of a crime under Article 282 of the Criminal Code of the Russian Federation, it is not enough to establish that the offender and the victim belong to different nationalities, races, etc., it is necessary that enmity or hatred (at least on the part of the perpetrator) exist on this basis at the time of the assault and they served as the motive for the commission of the crime. Consequently, a conflict situation between persons of warring nationalities on a different basis, for example, on domestic grounds, is not excluded.

It should be noted that the main crime under Article 282 "Incitement of hatred or enmity, as well as humiliation of human dignity" of the Criminal Code of the Russian Federation prohibits actions aimed at inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the grounds of gender, race, nationality, language, origin, attitude to religion, as well as belonging to any social group committed in public, while crimes against life and health under circumstances of "hatred and enmity" are often committed in conditions of non-obviousness, i.e. in the absence of witnesses.

Therefore, in our opinion, in such an investigative situation, the evidence in the case indicating a sign of "hatred and enmity" should be information about the commission of such a crime by a criminal or a group of criminals of one ethnic or social, religious affiliation, united to commit a crime against the identity of the victim of another nationality or social, religious affiliation.

In the modern world, relations between nations and nationalities, between different faiths should be based on the principles of mutual respect and equality. In the case when the idea of superiority of one and, accordingly, inferiority, unacceptability of another ideology, social group, religion, nation or race begins to dominate in the minds, there is a ground for mutual hostility and hatred, for interpersonal conflict relations and any insignificant reason can turn into a crime ^[5].

As a general rule, the victims of a crime are representatives of a different ethnic or social group, denomination, race than the one to which the perpetrator belongs. There may be a situation when a co-religionist or a person of the same nationality becomes a victim (in the case, for example, of revenge for passivity, a conciliatory attitude towards non-believers or murder in order to lay the blame for the deed on the hostile side and thereby incite or strengthen enmity).

The above list of crimes qualified on the grounds of "hatred or enmity" unites a common feature – violence, i.e. intentional and forced physical or psychological impact on a person.

       At the same time, in our opinion, it is obvious that such crimes are often committed exclusively against people of a different nationality or religion, which directly correlates with signs of national or religious hatred or enmity, or hatred or enmity against a social group. As a rule, criminals, fearing blood feud, do not commit such crimes against co-religionists and immigrants from states (republics) whose citizens (residents) are the perpetrators.

       It can be assumed that the legislator proceeded from the fact that criminal cases initiated on the fact of rape or violent acts of a sexual nature relate to cases of private-public prosecution, i.e. they are initiated not otherwise than at the request of the victim. At the same time, it should be noted that this applies only to cases of crimes under consideration, initiated according to the main composition (part one of the relevant articles).

       In this context, it is necessary to agree with U.N. Akhmedov that "Proving the motive of national or racial hatred or enmity presupposes the establishment of ... circumstances indicating that the suspect (accused) has taken measures to conceal the motive of national or racial hatred or enmity in a post-criminal situation" ^[2].

       We believe that the guilty person detained in the territory of the host State understands that he intentionally committed a crime against sexual freedom and sexual inviolability of the person of a representative of the indigenous population, which entails a long term of serving a sentence in places of deprivation of liberty in conditions of extremely negative attitude of other convicts. Therefore, opposing the investigation, he often tries to create an idea of the provoking "guilty" behavior of the victim himself. Thus, criminals hide their true motives for committing a crime, such as the desire to morally humiliate the victim(s) on the grounds of racial or religious intolerance, intimidate the local population and establish their own rules in a certain territory, etc.

       It is natural that such crimes cause a public outcry, destabilize the socio-political situation (the growth of protest activity and mass discontent of the local population in the territory of their commission), disrupt the work of state authorities and management.

       For example, on March 18, 2019, several thousand residents of Yakutsk went to a rally against labor migrants from Central Asia. The reason was that three Kyrgyz citizens raped a local woman. Despite the fact that the criminals were detained, the protest mood heated up to such an extent that the next day a second rally was held in the Triumph sports complex. The arena, designed for five thousand people, was almost completely filled. Residents of Yakutsk and neighboring districts of the republic came to the event. The meeting was attended by representatives of the authorities and law enforcement agencies. Employees of the Embassy and representative office of the State Migration Service of Kyrgyzstan in Russia flew from Moscow to Yakutsk ^[11].

       Based on the above, we propose to supplement:

Part three of Article 105 of the Criminal Code of the Russian Federation, including as a specially qualified composition the item "a) committed by an organized group motivated by political, ideological, racial, national or religious hatred or enmity or motivated by hatred or enmity against any social group";

the second parts of Article 131 and Article 132 of the Criminal Code of the Russian Federation with the following paragraphs:

"d) committed on the grounds of political, ideological, racial, national or religious hatred or enmity, or on the grounds of hatred or enmity against any social group."

       The introduction of the qualifying feature proposed by us into the Criminal Law will make it possible to investigate such crimes within the framework of criminal cases of public prosecution and thereby impose a more severe punishment, which, in our opinion, should also be revised in the direction of tightening.

       In this article, based on the format of the scientific work, we have tried to consider only some problems of the qualification of crimes against the person containing signs of hatred or enmity, as well as humiliation of human dignity. Our work will be continued in the framework of further scientific research.