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

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.