On the Expediency of Introducing Criminal Responsibility for Inciting Suicide or Assisting Suicide: a Critical Analysis and Suggestions for Improving the Law

Ivashchenko Violetta Vladislavovna Postgraduate, Department of Criminal law and Criminal Procedure Law, Institute of Law, North-Caucasus Federal University 355000, Russia, Stavropol Territory, Stavropol, Pushkin str., 1 violetta2204@yandex.ru Other publications by this author

In 2017, criminal liability was introduced for inducing suicide, assisting in its commission, as well as organizing activities aimed at inducing suicide ^{[22, 23]}.

According to the explanatory note to the draft law ^[17], due to the lack of criminal legal regulation of these acts in Russian legislation, the state was unable to respond in a timely manner to modern criminal manifestations. Domestic criminologists have failed to predict in advance the likelihood of new forms of deviant behavior that may threaten one of the most vulnerable categories of the population – minors.

Given the nature of the acts and the social urgency of the agenda, the result of the legislative process should have been the adoption of truly effective norms designed to respond quickly and efficiently to modern events. At the same time, under considerable public pressure, new provisions of the law were adopted spontaneously, as evidenced by the low degree of elaboration of the included amendments, the lack of a thorough analysis of the current legislation, a clear contradiction to the principle of economy of the text of the criminal law.

As practice shows, normative legal acts are often adopted in circumstances that require a speedy reaction of the state apparatus to newly emerging phenomena, and therefore, we can increasingly observe poor-quality results of law-making activities, expressed in inconsistencies in the norms of law, contradictions in the provisions of the law, collisions, violations of the basic rules of legal technique.

All this creates problems in the construction of a coherent legal system, not allowing lawmakers to achieve a positive result, entails difficulties in the effective regulation of public relations. Under such circumstances, the importance of legal technology especially increases, the techniques and means of which in the process of creating legal norms are the most important tools in the hands of representatives of legislative bodies.

In the doctrine of law, legal technique is understood as a set of rules, techniques, means of preparation, registration, publication and systematization of normative legal acts and other legal documents ^[15]. Among the characteristics of this legal phenomenon, researchers also note complexity, multistructure, multifunctionality and complexity ^[14]. At the same time, there are various approaches to the definition of the concept and contents of legal technology in science.

Thus, V.M. Baranov believes that the term "legal technique" is inherently contradictory and is used by the legislator only by tradition. According to the author, the concept of "legal technology" looks much more meaningful, since it includes a set of principles, techniques, procedures for registration and implementation of all types of legal practice ^[3].

We tend to disagree with such an expansive interpretation of the legal phenomenon under study due to the vagueness of the wording and generality in its interpretation, and be guided by the above classical interpretation.

Legal technique is always associated with a certain organization of legal material and its external presentation. Its structure traditionally distinguishes technical means and techniques. The latter express the features of the verbal construction of a legislative act and legal norms and are divided into two groups depending on: 1) the degree of generalization of the indicators of the norm (abstract and casuistic); 2) the method of presentation of the elements of the norm (direct, reference and blank) ^[1].

In order to draw a conclusion about how effectively these legal and technical tools are used in practice, in particular within the framework of the article under consideration of the Criminal Code of the Russian Federation, it is advisable to refer to the current legislation and analyze the novels related to the consolidation of criminal liability for inducement and assistance in committing suicide (Article 110.1 of the Criminal Code).

Was the legislator able to achieve efficiency in the construction of dispositions of Article 110.1 of the Criminal Code of the Russian Federation, accuracy of future interpretation and clarity in the application of norms in practice?

Using the example of the disposition of Part 1 of Article 110.1 of the Criminal Code of the Russian Federation, we clearly see how abstract and casuistic techniques can be combined in practice. Thus, the legislator gives a formal description of the acts constituting the crime, namely, "inducement to commit suicide", without disclosing the concept of assistance within the framework of the article. Further, he describes the act through an open list of alternative ways of committing a crime, resorting to a casuistic technique of legal technique ("by persuasion, proposals, bribery, deception or otherwise"), concretizes the criminal-legal meaning of the objective side.

The use of the techniques of the second group is also clearly demonstrated by the legislator in terms of using a direct method of describing an act, the content of which is interpreted by the layman easily and without reference to other normative legal acts. And reference reception, namely "in the absence of signs of bringing to suicide", which excludes the imputation of signs of the objective side characteristic of the act provided for in Article 110 of the Criminal Code of the Russian Federation.

In the general theory of law, the most important tools that contribute to the economy of the text of the criminal law and act as the basic ones in the differentiation of criminal responsibility are the reference and banquet reception. However, for some reason, the legislator did not adopt the reference technique, constructing qualified elements of the crime provided for in Part 3 of Article 110.1 of the Criminal Code of the Russian Federation.

Despite the seemingly effective use and combination of legislative techniques, the very expediency of allocating the composition to an independent article of the Criminal Code of the Russian Federation is questioned in view of the following.

It is obvious that such impulsiveness in making amendments was due to a wide public response caused by the shocking immoral activities of persons to attract minors to "death groups" and incite them to commit suicide, as well as a sharp surge in child suicides in Russia.

Thus, according to the statistics of 2016, there is an increase in child suicides by 57% compared to the previous 2015 ^[4]. According to the Investigative Committee of Russia, 692 child suicides were recorded in 2017, in 2018 – 788 (+14%) ^[12]. At the same time, according to Rosstat, for the period from 2014 to 2018, there is a general decrease in mortality due to suicide among the entire population of Russia (on average -10% annually) ^[7].

Despite such seemingly impressive quantitative values, according to the Judicial Department at the Supreme Court of the Russian Federation in 2018, only 4 persons were convicted under Article 110.1 of the Criminal Code of the Russian Federation, 2019 – 5, 2020 – 2, 2021 – 4, According to the results of 6 months of 2022, the criminal investigation was completed with a verdict of guilty under the article in question. cases against 5 people ^[24]. It is obvious that such a number of completed productions does not correlate with the number of registered deaths.

Before proceeding to a direct analysis of the objective signs of the crime in question, we consider it necessary to turn to the origins of the emergence of these criminal legal structures, considering the development of legislation on suicide in historical retrospect.

For a considerable period of time, there was no understanding in the law regarding the essence and legal nature of suicide and incitement to suicide (historically the first form of criminal liability in comparison with persuasion or assistance) – such cases fell under the scope of religious norms and were considered in special spiritual courts.

The first attempt to regulate social relations arising from suicide or attempted suicide was made by Peter I in the Military Article of 1715.

According to the provisions of this normative legal act, suicide was understood as the self-inflicted deprivation of life, and the subject of this crime was the person who committed it, that is, the victim of suicide directly, regardless of the presence of outside influence or pressure.

It should be noted that during the period under review, the concept prevailed, according to which the welfare of the army was the most important priority of state security, and therefore, the life of soldiers, as a value, increased and was especially strongly protected by the state from outside negative influences. This indicates that in the public consciousness of that time there was at least no understanding of the circumstances under which a soldier could independently take his own life, since this would mean the exclusion of a full-fledged combat unit from the ranks of the army and was considered nothing but a betrayal of the motherland by a fighter.

For committing such an act, a sanction was established in the form of humiliating punishment, involving dragging the body of a person who committed suicide through the streets and its subsequent burial outside the cemetery. "If someone kills himself, then the executioner should drag his body to a dishonorable place and bury it, dragging it first through the streets or a wagon train" ^[5]. Attempted suicide was punishable by death.

The cause of suicide was a qualifying sign of the specified act and influenced the degree of punishment. If a person committed suicide in unconsciousness or illness, then he was not subjected to this punishment. He was buried outside the cemetery, but not in the so-called "defamatory" place, but on the side. If the reason for suicide was shame or "annoyance", then the one who made such an attempt was disgracefully excluded from the ranks of the army.

The next milestone in the history of the development of criminal legislation on suicide took place under the auspices of its humanization, an example of which is the rejection of reprisals and desecration of the bodies of the deceased. At the same time, the punishment for attempted suicide remains severe and equivalent to the punishment of a murderer (a reference to hard labor).

An attempt to provide in the law for inducement (incitement) and assistance (aiding) to commit suicide as independent criminal acts was undertaken with the adoption of the Criminal and Correctional Punishments Ordinance of 1845. In this document, the legislator for the first time provided for the indirect participation of third parties, both in making a decision about passing away, and directly in the process of implementing the objective side of the act. Such special subjects could include, for example, parents (guardians), as well as persons whose suicide victim was financially or otherwise dependent, i.e. those who had any power over the suicide victim.

At the same time, the legal understanding of suicide as a behavioral act is also changing ^[6]. Decriminalization of suicide takes it beyond the scope of legal regulation, and it is no longer considered by the legislator as a crime.

Further in the history of the development of legislation, namely in the Criminal Code of 1903, we will not see significant changes in the rule of law in question compared to the previous period. The only novelty of legislative thought is the responsibility for providing the means of committing suicide (in fact, for facilitating suicide). Moreover, this normative act established a special and more severe responsibility for the commission of a crime against a minor or an insane person.

In the conditions of the revolutionary transformation of all spheres of activity and life of society, the state was tasked with creating a new system of law capable of effectively regulating relations in the socialist space, meeting the requirements of a new socio-economic strategy and the public interests of the state.

The result of rule-making activity was the Criminal Code of the RSFSR of 1922, where assistance and conspiracy to commit suicide were structurally distinguished and almost completely duplicated the provisions of the Criminal Code of 1903. According to the Criminal Code of the RSFSR of 1922, criminal liability for assistance and conspiracy (inducement) to suicide occurred in the case of any kind of assistance to create favorable conditions for committing suicide (assistance suicide) or a sub-conspiracy, i.e. psychological influence aimed at arousing a person's intention to commit suicide (inducement to suicide); committing a similar one against a person who has not reached the age of majority or is obviously incapacitated; as well as when socially dangerous consequences occur in the form of suicide or an attempt on him. The commission of these crimes was punishable by up to 3 years of imprisonment.

In the Criminal Code of the RSFSR of 1926, the norm passes almost completely and is fixed in Part 2 of Article 141 of the Code. The novelty of the normative legal act is the consolidation of suicide as a criminal act for the first time in the history of domestic legislation. The disposition of the norm indicates a mandatory condition for the material or other dependence of the victim (victim), among the methods of commission, cruel treatment is distinguished.

It is worth noting the implementation of the principle of differentiation of criminal responsibility. Thus, the punishment for driving to suicide was provided in the form of imprisonment for up to 5 years, for assistance and conspiracy to it (part 2) – up to 3 years. Thus, the legislator notes the greatest degree of public danger of being driven to suicide.

Additionally, in the scientific literature of that time, an opinion is expressed regarding the possibility of committing the crime in question by bullying and slander ^[9].

The Criminal Code of the RSFSR of 1960 in its content refused assistance and conspiracy to suicide. This is how the crimes that are the object of this study were decriminalized. Article 107 of the Criminal Code of the RSFSR of 1960 stipulated that a person who is financially or otherwise dependent was driven to suicide by ill-treatment of the victim or systematic humiliation of his dignity. At the same time, the last sign was an innovation.

The list of ways of committing an act became closed and was not subject to an extended interpretation. The legislator refused from particular cases of imputation of this crime and followed the path of fixing a more general (abstract) formulation of the disposition.

The Criminal Code of the Russian Federation of 1996 approached the understanding of this norm somewhat differently, and therefore, it was significantly modified. Thus, the legislator no longer points to material or other dependence as qualified signs, but formulates a limited list of alternative ways to commit it, highlighting only threats, ill-treatment and systematic humiliation of human dignity. Such a decision expanded the scope of application of the norm, because earlier, when qualifying the relevant acts, there was a problem of establishing a sign of material or other dependence of the victim.

Over the past two decades, the norm has repeatedly undergone minor changes in terms of the construction of qualified trains, but in general it was sufficient and universal in the qualification of the relevant acts.

The initial refusal of the Russian legislator to criminalize the acts that constitute assistance and inducement to commit suicide made it possible to realize even more the importance of continuity in the construction of the main elements of crimes. As it is correctly noted in Zhirnov A.D., "the establishment of responsibility for inducing suicide is a historically and scientifically determined phenomenon corresponding to the level of development of society and the level of legislative technology" ^[9].

Thus, the analysis of the domestic criminal law array allows us to conclude that the regulation of criminal liability for the crimes under study is not something definitely new, but arose and existed for a long time, periodically undergoing regular transformations taking into account the consistent development of public relations, legislation and statehood in general.

With an understanding of the existing historical prerequisites, let us turn to the analysis of the criminal-legal structure of inducement to commit suicide or assistance in its commission, provided for by the current law.

The objective side of the corpus delicti provided for in Part 1 of Article 110.1 of the Criminal Code of the Russian Federation is described by the legislator as "inducement to commit suicide by persuasion, offers, bribery, deception or otherwise."

To qualify this criminal act, the occurrence of socially dangerous consequences in the form of the death of the victim is not required (this will constitute a separate crime under Article 110 of the Criminal Code of the Russian Federation), and therefore, the composition is formal, as well as assistance in committing suicide (Part 2 of Article 110.1 of the Criminal Code of the Russian Federation).

Since the novelties of the criminal law are obviously close to the composition of crimes to suicide, both in terms of the object of encroachment and the wording of the titles of articles, it is advisable to start with an analysis of the etymology of the concepts of "declension", "assistance" and "bringing". At the same time, we note that until now, the above concepts have not been given official interpretations (explanations) – in practice, they are determined through an open list of ways to commit them.

According to the explanatory dictionary, "assistance" is an active participation in someone's affairs in order to facilitate, help, support in some activity; "persuade" is to convince of the need for some action, decision"; "bring" means to bring into some state, cause, generate in someonesome kind of consequences or something ^[19].

Considering the above, the communication covers the concepts of "declination" and "assistance", since the former implies achieving a result compared to the latter, where the result is not mandatory.

Also noteworthy is the obvious similarity of the wording of Part 1 and Part 2 of Article 110.1 of the Criminal Code with the definitions of the instigator and accomplice specified in Part 4 and Part 5 of Article 33 of the Criminal Code, respectively.

Contrary to the opinion of Artyushina O.V. ^[2], the qualification of these acts under Article 110 of the Criminal Code of the Russian Federation with reference to the article on complicity is obviously impossible. Being the subject of psychological analysis, theological and ethical reflection, suicide in itself does not constitute a crime and is outside the framework of criminal legal regulation, which is why there are objectively no grounds for bringing to criminal responsibility for complicity in a legally insignificant event.

The concept of "declension" is nevertheless not unknown to criminal law. In accordance with paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.02.2012 No. 1 "On certain issues of judicial practice in criminal cases of terrorist crimes", declension should be understood as intentional actions aimed at involving a certain person in committing a crime ^[16].

Analyzing the signs of the objective side of inducement and assistance to commit suicide, namely the method of committing crimes, we come to the conclusion that, firstly, the establishment of the method in the cases under consideration is mandatory, otherwise the corpus delicti will be absent. Secondly, these methods are characterized by a "mild" effect, which, apparently, is due to the differentiation of the compounds under consideration with suicide. To qualify the latter, it is necessary to establish the method of committing a closed list of crimes (threats, ill-treatment, systematic humiliation of the victim's human dignity) or a combination of them.

Since some of the methods of committing suicide are fixed in the law as independent crimes (threat of murder or causing serious harm to health (Article 119 of the Criminal Code of the Russian Federation), torture (Article 117 of the Criminal Code of the Russian Federation), we can conclude that there is a higher degree of public danger of this crime in comparison with those that are fixed in the article 110.1 of the Criminal Code of the Russian Federation ^[8].

For a better understanding of how the investigative bodies and the court in practice qualify the signs of the objective side of these crimes and where is the line that distinguishes criminal acts related in essence and construction, consider several sentences in criminal cases initiated on the grounds of the elements of crimes provided for in Articles 110 and 110.1 of the Criminal Code of the Russian Federation

Thus, by the verdict of the Etkulsky District Court of the Chelyabinsk Region of September 05, 2018 (case No. 1-57/2018), the 26-year-old curator of the "deadly games" was found guilty of attempted crimes under Part 1 of Article 110 of the Criminal Code of the Russian Federation, Part 1 of Article 163 of the Criminal Code of the Russian Federation. The court imposed a sentence of imprisonment for a period of 3 years and 4 months with serving the sentence in a colony-settlement. The qualification on the grounds of suicide was influenced by the way the crime was committed – a man threatened a 14-year-old schoolgirl with murder, and also extorted money from her when she refused to commit suicide ^[10].

In another case, by the decision of the Leninsky District Court of Chelyabinsk dated December 23, 2019 (case No. 1-45/2019), a 23-year-old defendant was sentenced to 4 years and 5 months of imprisonment in a general regime colony for a number of crimes against the person, including for inducing suicide by persuasion ^[11].

It is noteworthy that for bringing to suicide (Part 1 of Article 110 of the Criminal Code of the Russian Federation) (initially a more socially dangerous crime), the legislator has established a punishment in the form of imprisonment for up to 6 years, whereas when inducing or facilitating the commission of suicide that entailed suicide or an attempt on it (Part 4 of Article 110.1 of the Criminal Code), the minimum period of isolation from society is only 5 years.

At the same time, in both cases, the result is the same, and the method of implementing a criminal act in the first case is recognized as more socially dangerous.

In our opinion, such a significant gap in the sanctions of the elements of a crime with a similar result, provided there is a higher public danger of the mechanism of committing suicide, does not meet the principle of differentiation of criminal responsibility and requires additional analysis within the framework of rule-making activities. In Part 1 of Article 110.1 of the Criminal Code of the Russian Federation, the legislator indicates persuasion, offers, bribery, deception or other methods. In the context of the nature of the crime being committed, in our opinion, it is permissible to indicate deception, persuasion and even bribery (in favor of third parties, since, if the plan is brought to the desired result, the victim will not need compensation). However, an offer to commit suicide (as a way of committing a crime) can be made in the form of persuasion or the same bribery, if we are talking about a monetary offer. In this connection, we consider it expedient to exclude "proposals" from the list of methods, if only because the legislator has already provided for the wording "or in another (non-violent) way".

Part 2 of Article 110.1 of the Criminal Code of the Russian Federation establishes such methods of committing a crime as advice, instructions, providing information, means or instruments of committing suicide or removing obstacles to its commission or promising to hide the means or instruments of committing suicide. Within the framework of this crime, wouldn't advice, guidance, and information be in similar ways? The way in which the procedural documents will describe the actions of the person brought to criminal responsibility depends rather on the staff of the preliminary investigation bodies or the judge, but not at all on the substance of the method, since in all three cases the performer of the objective side will somehow inform the victim about how to commit suicide. Taking this into account, we consider it appropriate to leave a broader term in the law, for example, the provision of information (information), excluding advice and instructions.

The consolidation of qualified signs in Part 3 of Article 110.1 of the Criminal Code of the Russian Federation is legally justified, since the legislator has designated an increased degree of public danger of crimes committed against socially vulnerable categories of the population. However, attention is drawn to the complete similarity of this part with the qualified compositions of bringing to suicide, namely Part 2 of Article 110 of the Criminal Code of the Russian Federation. In our opinion, this again testifies to the accumulation of the law and the inexpediency of the existence of compositions of declension, assistance and bringing to suicide in various articles of the criminal law, it seems quite logical to fix them in Article 110 of the Criminal Code of the Russian Federation ^[2].

Among other things, we believe that the legislator missed the need to include in the structure of the article such a special subject of committing a qualified crime (in relation to a minor) as a parent, a teacher or another person who is legally charged with the duties of raising a minor (by analogy with Part 2 of Article 150 of the Criminal Code of the Russian Federation). In this regard, we should agree with the opinion expressed by Ustinova T.D. ^[21] that the commission of these crimes by a special subject obviously increases the public danger of the act, which is why its inclusion in the text of the law seems quite justified.

Thus, based on the results of a theoretical analysis of the elements of crimes provided for in Article 110.1 of the Criminal Code of the Russian Federation, we come to the following conclusions.

1. The amendments were adopted spontaneously and were not sufficiently elaborated by the legislator from the point of view of the rules of legal technique, as well as from the position of the principle of clarity, clarity and completeness of the law, which negatively affected the effectiveness of the qualification and application of the article in practice.

2. According to judicial and investigative practice, the differentiation of the elements of crimes provided for in Articles 110 and 110.1 of the Criminal Code of the Russian Federation occurs depending on the method of committing the crime.

In order to increase the effectiveness of the considered provisions of the law, the following is proposed.

1. Taking into account the results of law enforcement, revise the list of methods specified in the dispositions of Parts 1, 2 of Article 110.1 of the Criminal Code of the Russian Federation, excluding the use of synonyms (instructions, advice, information), concepts related to each other as general and particular (persuasion, suggestions). To abandon the open list of methods, excluding the wording "or in another way".

2. By analogy with Part 2 of Article 150 of the Criminal Code of the Russian Federation, we consider it expedient to provide for cases of commission of a crime by a special subject who, by virtue of the law, is entrusted with the duties of raising a minor or under his supervision.

3. In pursuance of the principles of justice and differentiation of criminal responsibility, to review the sanctions of the same-order by the nature and degree of public danger of crimes, excluding the possibility of abuse by persons carrying out qualification.

4. In order to save the test of the criminal law, consider combining into one article the compositions providing for responsibility for inducement, assistance and bringing to suicide, taking into account the above-mentioned proposals.