Signs of special cruelty at the time of the crime. Murder committed with extreme cruelty. The list looks like this

The concept of special cruelty is evaluative.

Under special cruelty should be understoodprevious murder or accompanying his intentional action (inaction),optional to cause death to a person and consisting in causing the victim or his relativesadditional physical or mental special suffering.

In accordance with par. 8 resolutions of the Plenum Supreme Court RF "About judicial practice on cases of murder (Article 105 of the Criminal Code of the Russian Federation) ”when qualifying a murder according to p. "d" part 2 of article 105 The Criminal Code of the Russian Federation should proceed from the fact that the concept of special cruelty is associated both with the method of murder and with other circumstances indicating the manifestation of special cruelty by the perpetrator. At the same time, in order to recognize the murder as committed with special cruelty, it is necessary to establish that the intent of the perpetrator covered the commission of murder with special cruelty.

A sign of special cruelty is present, in particular, in cases where, before the deprivation of life or in the process of committing a murder, torture, torture or mockery of the victim were used on the victim, or when the murder was committed in a way that is known to the perpetrator associated with causing the victim special suffering (infliction of great number of bodily injuries, the use of a painful poison, burning alive, prolonged deprivation of food, water, etc.). Particular cruelty can be expressed in the commission of a murder in the presence of persons close to the victim, when the perpetrator was aware that by his actions he was causing them special suffering.

Mocking a corpse in itself cannot be regarded as a circumstance indicating the commission of a murder with particular cruelty. The committed in such cases, if there are no other data on the manifestation of special cruelty by the perpetrator before depriving the victim of life or in the process of committing a murder, should be qualified under the relevant part.Article 105 and Article 244 Criminal Code of the Russian Federation, which provides for liability for desecration of the bodies of the dead.

The destruction or dismemberment of a corpse in order to conceal a crime cannot be grounds for qualifying a murder as committed with special cruelty. .

Analyzing this situation, it can be concluded thatspecial cruelty murder is characterized by one of the following circumstances:

1) behavior guilty before deprivation of life of the victim (torture, torment, mockery, mockery, etc.); at the same time, death itself can be instantaneous (shot, stabbed, etc.);

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

3) situation murder (causing death in the presence of relatives of the victim, against a helpless person due to age (young, elderly), illness (physical or mental characteristics of the victim) or other condition (severe intoxication, force majeure, etc.), whenvictim understood, realized that they were trying to take his life, asked for mercy, begged the guilty person not to kill him, tried with all his might to somehow protect himself, to escape from the killer, and the guilty person, despite all this, nevertheless causes death to the victim.

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

At the same time, the perpetrator wants to inflict death with particular cruelty or is indifferent to what causes the victim special physical or mental suffering or deliberately allows them. Necessary condition is that guiltyconscious that the victim is experiencing such suffering.

In the legal literature, the issue of the criminal-legal assessment of the act of the perpetrator is ambiguously resolved when he is mistaken about the suffering experienced by the victim. That is, when the perpetrator wishes to inflict special suffering on the victim, but cannot do this for reasons beyond his control (the victim died after the first stab or from traumatic shock at the beginning of the torture, due to severe intoxication or another unconscious state, he did not feel pain and etc.).

The following qualification options are offered:

1) part 1 of article 105 of the Criminal Code of the Russian Federation - as a simple murder;

2) part 3 of article 30, paragraph “e” of part 2 of article 105 of the Criminal Code of the Russian Federation - as an attempt on a qualified murder;

3) p. "d" part 2 of article 105 of the Criminal Code of the Russian Federation - as a completed qualified murder;

It seems that the most reasonable is the position of A.N. Popov, who proposes to qualify such a murder depending on the type of intent. If intent to kill with particular crueltystraight , then the presence of a mistake (delusion) of the perpetrator in relation to the special suffering experienced by the victim does not affect the qualification - the murder should be considered completed if objectively the actions of the perpetrator were especially cruel.

If the intent to cause deathindirect , then the deed must be qualified depending on the actual circumstances of the crime committed.

Any murder, by definition, is a manifestation of cruelty towards the victim. However, in some cases, special attention is paid to how exactly such cruelty was shown by the attacker. The Criminal Code of the Russian Federation does not give a definition to such a sign, and therefore one should be guided by additional regulatory materials.

Clause 8 of this act specifically addresses the issue of the intricacies of qualification under clause “d” part 2. PVS indicates the following:

Particular cruelty may manifest itself both in the manner in which the death was inflicted and in other circumstances of the case.
The goal of the killer is to inflict maximum suffering on the victim. In particular, this method is the application of torture to the victim, mockery of him, torment by hunger or thirst. As for moral suffering, then, in particular, the case when the victim was killed in front of his relatives can be considered as a method.
Desecration of a corpse usually cannot be considered as cruelty; Art. 244 . However, if signs of a particularly painful murder are seen in other actions of the perpetrator, mockery of the corpse may also be one of the evidence that paragraph “e” of Art. 105 of the Criminal Code of the Russian Federation.
Destruction (burning, the use of acid or caustic alkali), as well as the dismemberment of a corpse in order to get rid of the traces of a crime, cannot in itself be considered a sign of particular cruelty.

Important: Although when making a decision, the judge should be guided only by the Criminal Code and the Code of Criminal Procedure of the Russian Federation, the position of the RF Supreme Court is extremely important, since it generalizes the established practice - and as a result, law enforcers are guided by the opinion expressed by the Supreme Court of the Russian Federation.

What is characterized?

Special cruelty as characteristic feature This kind of criminal activity can manifest itself as:

In general, such crimes are characterized by the fact that the perpetrator many times exceeds the measure of cruelty and torment necessary in order to simply deprive a person of life. Its goal is not just murder, but the most painful death of the victim.

However, those cases when the killer simply could not finish the job quickly, and therefore, for example, long and clumsily stabbed the victim with a knife, unsuccessfully strangled, etc., cannot be considered as crimes committed with particular cruelty.

The main thing for qualification is precisely the purpose for which the criminal acted. If he was just going to kill the victim, but for some reason he could not do it quickly and relatively mercifully - there are no grounds for qualifying under paragraph “e”, Part 1 of Art. 105 or another paragraph of part 2.

Examples

An example of a murder committed with particular cruelty is a criminal case considered by the Voronezh Regional Court. Its plot is as follows: M. and N., who lived in one of the villages of the Nizhnedevitsky district of the Voronezh region, had long been in hostile relations. And once M., having the intent to kill, made his way to the territory of N.'s farm at night, stunned him and dragged him into the barn.

There M. tied N. with steel wire (so that he could not burn through the rope and free himself), waited for N. to come to his senses, after which he locked the door and set fire to the shed.

A forensic psychiatric examination was ordered and carried out in the case. She acknowledged that M. was sane. As a result, he was sentenced to 12 years.

Another example, when such a qualifying feature as “special cruelty” was applied unreasonably, is the case considered by the same court a few years later. Case plot: A. and K., who live in the countryside, were having a drink together one evening.

In the process of drinking, they quarreled among themselves, and A. called K. a goat. Previously convicted, sitting and adhering to the "thieves' concept" K., this seemed so offensive that he waited until the drunk A. fell asleep, after which he took an ax and cut A. into pieces.

Initially, the actions of K. were qualified by the investigator under paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation. However, in the future, the defense was able to convincingly prove that by the time of dismemberment A. was already dead - the first blow fell on the neck and separated his head. As a result, A.'s actions were reclassified to Part 1 of Art. 105.

The corpus delicti in accordance with paragraph "D" part 2 of Art. 105 of the Criminal Code of the Russian Federation

With regard to paragraph "d" Art. 105 of the Criminal Code of the Russian Federation, the composition includes the following elements:

Types of intent

Any murder according to modern Russian criminal law is an intentional crime.

In the event that the offender did not intend to kill the victim, but only allowed her death, his actions will be qualified under other articles of the Criminal Code of the Russian Federation (for example, article 109, which speaks of negligent deprivation of life, or part 4 of article 111, providing for liability for grievous bodily injury resulting in death).

Is no exception in terms of intent and the crime under paragraph "d" part 2 of Art. 105 of the Criminal Code of the Russian Federation. It must also be intentional. However, this intent in practice can be of two types:

Straight(part 2 of article 25 of the Criminal Code of the Russian Federation). In this case, the perpetrator wants precisely to inflict a painful and cruel death on the victim, and his goal is precisely this. The attacker is fully aware that his actions are illegal, he knows about possible consequences(in the form of the onset of the death of the victim) - and strives precisely for this.
Indirect, also called eventual(part 3 of article 25 of the Criminal Code of the Russian Federation). In this case, the attacker's goal is not to cause death, but he is aware of its possibility, and even if he does not directly desire such consequences, he consciously allows them.

In relation to a murder committed with particular cruelty, indirect intent is less common. It is difficult to say that the offender, who by his actions (or inaction - if, for example, he makes the victim die of hunger or thirst) causes additional suffering to the victim, does not want death to occur, is difficult. However, theoretically such situations are possible. However, they will not affect the qualification of the act under paragraph "e" of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.

How many years in prison is given as a punishment?

Murder with special cruelty is included as part of the second part of Art. 105. Consequently, it includes all the types of punishments provided for by this part, which can be applied to the offender as a measure of responsibility. Part 2 Art. 105 of the Criminal Code of the Russian Federation provides for the following measures of responsibility for the perpetrators:

In the event that imprisonment for a certain period is used as a measure of punishment, in addition, restriction of liberty for a period of 1 to 2 years may be imposed. This type of punishment under Art. 53 of the Criminal Code of the Russian Federation, is a ban on the convicted person to perform certain actions. In particular, the court may, for the duration of this punishment, prohibit him from:

Leave the place of permanent residence.
Do not go to public places.
Do not travel outside the municipal area.
Do not change the place of work or study without the consent of the supervisory authority for those serving sentences, etc.

In addition, in this case, the convicted person is obliged, according to the established schedule, to appear for registration with the supervisory authority (at least once a month).

Problems of delimitation from similar acts

Criminal acts may be similar, and then the task of the law enforcer is to choose the necessary norm of criminal law and correctly qualify the actions of the attacker. However, due to the similarity of the compositions, confusion is sometimes possible. The composition specified in paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation. What other types of crimes is it similar to, and how can it be distinguished from them?

This type of crime is most similar to the one provided for in part 1 of the same article - that is, with an ordinary (unqualified) murder. In fact, the only difference is how the victim was killed - with or without special cruelty. Therefore, in order to delimit these two compositions from each other, it is necessary to establish the motives and goals that the criminal was guided by when committing his act.

Also, oddly enough, there is a similarity with the corpus delicti under Art. 107 of the Criminal Code of the Russian Federation, that is, with murder in passion. An affect in criminal law is such a state of emotional excitement when a person partially loses the ability to control his actions (but not completely - affect does not make a person insane).

Quite often, a person who has fallen into an affect can do quite terrible things.- including cruelly and painfully killing your offender. For example, in investigative practice, corpses with tens and hundreds of stab wounds are not too rare: a husband, a domestic tyrant, finally brought his wife to the point - and she stabbed him with a kitchen knife until she had the strength to hold the handle. However, it is impossible to consider such a murder committed with particular cruelty.

Therefore, in order to avoid a legal error, the following should be taken into account:

The effect under Art. 107 of the Criminal Code of the Russian Federation, arises only in response to violent acts or insults on the part of the victim. For any murder under Art. 105 is not required.
In the case of affect, the infliction of torment on the victim is not the purpose of the offender and is not covered by intent. As part of the same, provided for in paragraph "d" part 2 of Art. 105 of the Criminal Code of the Russian Federation is a mandatory element.
With affect, the intent to kill arises and is realized only at the moment of strong emotional excitement. The preparation and planning of the crime is impossible; those tools and objects that are literally at hand are used. Murder with particular cruelty can be committed in cold blood, deliberately and planned.

In investigative practice, the main criterion by which these two types of crimes are distinguished is the result of a forensic psychiatric or complex psychological and psychiatric examination.

Affect is an extremely rare phenomenon (many psychologists believe, for example, that it can occur in a person only once in a lifetime), and it is extremely difficult to imitate it without special knowledge in the field of psychology and psychiatry.

Therefore, much attention should be paid to the behavior of the offender before, during and after the murder. In particular, the affect is characterized by a phase of “discharge”, emptiness, when, having splashed out its anger, the person relaxes, loses strength, in especially acute cases, it can even fall asleep right next to the corpse. For any other types of murder, this is not typical.

Finally, paragraph "d" part 2 of Art. 105 can be confused with part 4 of Art. 111 of the Criminal Code of the Russian Federation - causing grievous bodily harm, as a result of which the victim died. The key difference here is intent. In any composition provided for by Art. 111 it will cover only the infliction of bodily harm, and in Art. 105 - causing death.

Murder committed with special cruelty is such a deliberate infliction of death in relation to another person, when this death is associated with additional physical or moral suffering of both the victim himself and other persons. Such a crime is committed only intentionally, while the offender must be at least 14 years old at the time of the commission. The punishment is only imprisonment for a term of either 8 to 20 years, or life.

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murder cruelty affect helpless

Introduction

2.2 Subjective elements of a crime

3. The difference between a murder committed with particular cruelty and related offenses

3.1 The ratio of a murder committed with particular cruelty and a murder of a person known to the guilty person to be in a helpless state

3.2 The difference between a murder committed with special cruelty and a murder committed in a state of passion

3.3 The difference between a murder committed with special cruelty and an act committed in a state of necessary defense or in excess of its limits

Conclusion

List of used literature

Applications

Introduction

Life and health in almost all eras of the development of statehood were protected in the most strict way, with the help of the most repressive measures. These values, which even Aristotle considered to be absolute values, inalienable from human existence, preceded state laws or, at least, found an honorable place in legislative collections.

The natural human right to life as a way of biosocial existence has never been questioned. This tradition was successfully continued by the Kazakh legislator, who in Article 1 of the Constitution of the Republic of Kazakhstan clearly set priorities: a person, his life, rights and freedoms are the highest value.

Unlike the Criminal Code of the Kazakh SSR of 1959, in the Criminal Code of the Republic of Kazakhstan of 1997, the chapter “Crimes against the person” is the first, the Special Part of the Criminal Code begins with it. Such a hierarchy of values of the Special Part of the current Criminal Code of the Republic of Kazakhstan shows more clearly that in modern society a person becomes a goal for the sake of which any state initiatives are initiated. In addition to this fundamental point, that the state of nature and the highest social values have taken their rightful place in the hierarchy of criminal law preferences, the modern Kazakh criminal law brought into line with international standards, in which human life and health is paramount.

The right to life is protected in almost all legal systems - ancient and modern. It is enshrined in the Universal Declaration of Human Rights. The preamble is followed by the first article, declaring that all human beings are born free and equal in dignity and rights. The second article affirms the principle of non-discrimination, that is, it says that every person has dignity and rights, “without any distinction of race, color, sex, language, religion, political or other opinions, national or social origin, property class or any other position."

Another important document, which deals with the human right to life, was adopted and opened for signature by the UN General Assembly in 1966. This is the International Covenant on Civil and Political Rights, which largely specifies the Universal Declaration of Human Rights. The right to life is also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

IN modern systems murder law is regarded as one of the most serious crimes and provides for severe punishment.

Crimes against life are among the most common crimes. A correct assessment of the causes and conditions for committing a crime against life, all the circumstances of the case determines a just punishment.

Murder committed with special cruelty refers to a qualified type of murder, which is a special rule in relation to general norm about the murder - part 1 of Art. 96 of the Criminal Code of the Republic of Kazakhstan. As such, it differs from simple form murders on objective and subjective grounds, the presence of which indicates special circumstances that aggravate the crime.

Murder, committed with particular cruelty, has a number of features. The main one is that special cruelty refers to evaluative concepts. In principle, it is impossible to avoid evaluative concepts in criminal law, but their application traditionally causes significant difficulties.

The relevance of the work. According to the Center for Legal Statistics and Information under Prosecutor General's Office RK, the total number of murders committed on the territory of the Republic of Kazakhstan in 2011 is 1529 murders, among them 531 murders committed with special cruelty. On the territory of the North Kazakhstan region during the same period, a total of 121 murders were committed, of which 26 were committed with particular cruelty.

The criminological situation has not changed much in the first half of 2012: “the total number of murders committed on the territory of the Republic of Kazakhstan is 1654 murders, of which the number of crimes under paragraph “e” of Part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan is 604 murders. In the North-Kazakhstan region, the total number of murders committed is 35, of which 12 are murders under paragraph “e” of Part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan".

There is a clear increase in the number of murders committed with particular cruelty. As a result of the foregoing, the relevance of the chosen topic of the thesis is beyond doubt.

The purpose of the work is to find the criteria for special cruelty, allowing to correctly determine its presence or absence in each specific case when committing a murder, and also to find out how the methods of its commission affect the qualification of a crime. Why is it necessary to draw up an approximate list of circumstances that testify to the commission of a murder with particular cruelty.

The practical significance of the work lies in the fact that the conclusions formulated in the diploma can be practically used in the activities of the investigative and judicial authorities in the process of applying criminal law, in the educational process of law faculties.

1. The concept of "special cruelty" as a qualifying feature in criminal law

1.1 History of the development of criminal law for qualified murder

It seems that before proceeding to the analysis of the corpus delicti of a crime providing for responsibility for a murder committed with particular cruelty, one should turn to the history of the development of legislation on this crime.

The criminal legislation for a long time provides for increased criminal liability for murder committed with particular cruelty. Although it should be noted that the legislative wording of this aggravating circumstance varied significantly in different historical periods.

In Kazakh customary law, according to the nature of the protected object and criminal encroachment, premeditated murders differed: murder under aggravating circumstances, murder under extenuating circumstances and ordinary murder. Aggravated murders included: the murder of “honorable people”, the murder of parents, the murder of a husband by his wife, the murder of pregnant women, the murder of a baby not taken by her husband, and murder with the concealment of the corpse of the murdered. So, according to the law of Tauke, for the murder of the Sultan, the hojas of the guilty were punished seven times more severely than for the murder of an ordinary man. Article 67 of the Collection of the Kazakh adat of 1824 reads: “If someone kills a Khoja to death, that and the whole volost pays the relatives of the murdered person a fine such as is paid for the murder of ordinary seven people, if they don’t pay, then the next from that volost killers of relatives are seven people hang, including the murderer himself.

The criminal legal norms of customary law of the 19th century, in addition to the murder of sultans and hodjas, also included the murder of biys with the rank of tarkhans, the murder of officials with ranks and awards from the tsarist government, and some others as aggravated murders. Cases of the murder of these persons were necessarily transferred to the royal court and, in addition, the biy court exacted an increased kun from the guilty person or his relatives.

A wife who killed her husband was put to death. “If a wife kills her husband, then she will certainly be subjected to the death penalty, from which payment of the kun cannot save her, if her relatives do not forgive her.”

Similar norms are contained in the records of customary law produced in the 19th century. For the murder of a pregnant woman, the perpetrators were punished as for the murder of two people. Only when determining the size of the kun for a child in the womb, the time elapsed from the day the child was conceived was taken into account. At the Tokmak emergency congress of biys in 1893, it was decided: “When exacting a kun for the murder of a pregnant woman, aip or kun for a child is especially required, namely: a) for a child, when it is only in its infancy, to fine nine cattle from a camel; b) for a child in the fifth month - 25 cattle from a camel; c) for a child before the time of delivery after five months - half of the women's kuna.

A woman who killed a baby not born from her husband was put to death. Art. 87 of the Collection of the Kazakh adat of 1824 reads: “Parents are not subject to any punishment for the murder of children, except if a woman who has been adopted illegally, with an outsider, kills the baby out of shame, then she is put to death.”

Murder under aggravating circumstances also included murder with the concealment of the corpse of the murdered. The concealment of the corpse caused an additional expenditure of effort and money on the search for the culprit, deprived the relatives of the culprit of the opportunity to timely arrange a customary wake, and sometimes led to the fact that the corpse was eaten by dogs, wolves and other animals. In the records of customary law, published in the second half of the 19th century by Makovetsky, it was indicated that for murder with concealment of a corpse, the size of the kun "increases for a man by ten camels, and for a woman - by five to ten camels, and "suek-kun" is punished".

The specified limits are not exact, they are much larger. So, in 1880, the Kazakh Gishkanbai was killed in the Borokhudzirovskaya volost. As Kulteleev T. writes: “The killers, wanting to hide the traces of crimes, buried the corpse in the ground, but in a hurry they buried it shallowly, and after a while the dog got to the corpse, spoiling it. After the murderers were detained, the biy court determined “a normal kun for the murdered person in the amount of 2050 rubles. and 9 horses, in addition to this, for not issuing the body to relatives and carelessly closing it, to pay gardens (i.e., relatives of the murdered - 9 camels and 9 horses) ” .

IN late XIX century, especially from the second half of it, in connection with changes in the field of socio-economic relations in Kazakhstan and the well-known progressive influence of Russia on Kazakh society, changes were made to the views on crimes against the person. Some actions that were considered unpunishable by Kazakh customary law began to be recognized as punishable, and vice versa, a number of actions were excluded from the range of punishable ones. Significant changes have also been made in the penalties imposed for crimes against the person.

In Russia, increased criminal liability for a murder committed under aggravating circumstances was established in those cases "when the victim was deprived of his life through torture or was before being subjected to some more or less cruel torment" .

N. S. Tagantsev, revealing the concept of a murder committed by means that indicate the special malice and cruelty of the criminal, wrote the following: “the following two types should be included here:

a) when the slain is deprived of life through torture.

b) or when the slain before death was subjected to some more or less cruel torment.

The Code of 1824 does not give any more precise definitions of these conditions, leaving it to practice, in accordance with the circumstances of each specific fact, and the very ascertainment of these circumstances, which especially increase the responsibility of the guilty, should belong to the judges. One cannot but add that 2 p. Art. 1453 can be applied both where torture was, so to speak, an addition to murder, and where they served as a means of causing death.

Members of the editorial commission of the Code of 1903 in their commentary to it emphasized that “in this case, a subjective factor was put in the basis of increased responsibility for the murder - a special maliciousness of the will of the criminal who wants not only to deprive the victim of life, but also cause him physical suffering, pain and suffering."

At the same time, the authors of the Code of 1903 noted that: “murder by a shot from a gun or poisoning does not fit the case under consideration, at least due to the characteristics of the wound inflicted, or the properties of the poison, the victim died in slow agony, in terrible agony; on the other hand, a murder committed by roasting a body on a slow fire, tearing or cutting off the body in pieces, etc., remains qualified, even if from the first moment the victim fell into an unconscious state and lost sensitivity. At the same time, it is also indifferent whether these tortures and torments constituted the very process of murder, whether they were a means in a narrow sense, or whether they in themselves did not at all contribute to hastening death, such as, for example, a preliminary section with rods, pulling out hair, cutting out pieces of skin, dislocation individual members and similar tortures.

Thus, we can conclude that, according to the authors of the Code of 1903, the murder was considered to be committed in a particularly painful way for the victim when the perpetrator, in the process or before depriving the victim of life, deliberately sought to inflict special physical suffering on his victim, regardless of the fact achieving this goal in practice.

In our opinion, there was a contradiction between the construction of the law and the commentary that was given to it. The design of the law contained an indication only of the method of committing the crime. While the authors of the commentary argued that this crime is committed with a special purpose, aimed at causing the victim special physical suffering. It seems that if the purpose of causing special physical suffering is an obligatory sign of a murder committed with special cruelty, then it is obvious that this purpose should have been reflected in the structure of the crime. However, the Criminal Code of 1903 did not provide for this provision. Hence, in our opinion, we can conclude that the authors of the Code gave a broad interpretation of the law prepared by them. For example, the perpetrator took advantage of the fact that the victim is in a small wooden house, closed it, doused the house with a combustible substance and set it on fire. Apparently, according to the intention of the authors of the Code, in this case there were no grounds for qualifying the murder as committed in a way that was especially painful for the victim, which, in our opinion, can hardly be considered correct. Burning alive cannot but be recognized as murder, in a perfect way, especially painful for the victim. After all, it is no coincidence that in the dark times of the Middle Ages, it was precisely this method of execution that was widely practiced in relation to those sentenced to death, since this achieved the goal of not only depriving a person of life, but also causing him special physical suffering, inevitable in this case. Although in the situation we are considering, the perpetrator could act without a special purpose, only allowing the possibility of inflicting special suffering on the victim, who died in terrible agony. It is possible that the victim from the smoke and burning lost consciousness and lost his life, without experiencing any special torment and suffering.

Criminal codes of the RSFSR of 1922 and 1926 also provided for increased liability for a murder committed in a way that was especially painful for the victim - paragraph “c” of Article 136 of the Criminal Code of the RSFSR of 1926 - a murder committed in a way that was dangerous to the lives of many people or especially painful for the victim.

It should be noted that post-revolutionary authors gave the same interpretation of a murder committed in a particularly painful way for the victim, as did the authors of the Code of 1903. For example, Professor A. A. Zhizhilenko, commenting on the Criminal Code of the RSFSR must be distinguished from mere cruelty, which is an aggravating circumstance of any crime.

It is impossible not to pay attention to the fact that in the Criminal Code of the RSFSR of 1926, the method of murder was recognized as an aggravating circumstance of the crime, and the Criminal Code of the RSFSR of 1960 and the Criminal Code of the Kazakh SSR of 1959. already contained a different wording of the law. In paragraph "d" Art. 102 of the Criminal Code of the RSFSR and p. "d" Art. 88 of the Criminal Code of the KazSSR provided for liability for a murder “committed with special cruelty. Particular cruelty, which, of course, cannot be reduced only to a method of murder that is especially painful for the victim, should be interpreted much broader.

This circumstance is noted by almost all authors who turn to the analysis of qualified types of murder. Despite the fact that scientists differ in understanding the content of the concept of "special cruelty", they all agree that the Criminal Code of the RSFSR of 1960 and the Criminal Code of the Kazakh SSR of 1959 contained a more successful legislative formulation than the previous Criminal Code of the RSFSR of 1926.

For example, N. I. Zagorodnikov argued that “an indication of special cruelty more briefly and clearly defines such an aggravating circumstance, which gives a vivid description of the danger and the method of action and their consequences in the form of dying suffering and torment of the victim and the personality of the offender” .

M.K. Aniyants wrote: “Indication of a particularly painful method of murder did not cover all cases of murder that testified to the special cruelty of the offender, which in turn often led to inconsistencies in judicial practice. The point is not in replacing one term with another, but in the content that is embedded in this feature. The concept of "special cruelty" is more precise and broad, it covers the whole variety of cases in which intentional murder acquires a special danger. At the same time, it goes without saying that a murder must be qualified as especially cruel when it is committed in a way that is especially painful for the victim.

Legislative wording of paragraph "g" of Art. 88 of the Criminal Code of the Kazakh SSR of 1959 was repeated in paragraph "d" part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan 1997

This indicates, on the one hand, that the disposition of the law turned out to be quite successful, and on the other hand, that experience has been accumulated in the theory and practice of criminal law that can be used to resolve problems that arise when qualifying murders committed with special cruelty.

However, before turning directly to the study of this experience, in order to analyze the problem in more depth, it is necessary to reveal the content of the concept of "special cruelty" in criminal law and correlate it with a number of related concepts.

1.2 The concept of "special cruelty" in criminal law

Due to the fact that special cruelty refers to evaluative concepts, understanding its content requires a comprehensive, interdisciplinary approach. In this study, the task of a comprehensive study of the phenomenon of special cruelty was not set, since the knowledge of its nature cannot be limited to the framework of only one direction. We limit its study to the framework of problems arising in the qualification of crimes.

It is also necessary to take into account the fact that in Kazakh psychology the problem of cruelty as a independent problem, which goes beyond the concepts of aggressiveness and violence, began to be considered relatively recently. Domestic criminology is in a similar position, which not so long ago began to systematically explain the special cruelty in the commission of crimes.

Many researchers, when disclosing the concept of "special cruelty", turn to explanatory dictionaries of the Russian language. In particular, in the dictionary of S. I. Ozhegov, “cruelty is revealed through the concept of “cruel”, that is, extremely severe, ruthless, merciless”.

Therefore, it can be assumed that special cruelty implies the highest degree of manifestation of ruthlessness and mercilessness in the commission of a crime. However, it is somewhat alarming that cruelty is also defined as extreme ruthlessness and ruthlessness. What should be the degree of cruelty so that it can be recognized as special (special) cruelty?

In the criminal law literature, there are various opinions on this issue. Sometimes one can come across the assertion that the concepts of "cruelty" and "special cruelty" are equivalent. However, most authors try to show the difference between these concepts, paying attention to certain aspects of the problem under consideration. For example, S.K. Pitertsev believes that "a murder recognized as especially cruel must be characterized by an extreme degree of cruelty - cruelty that is super-ordinary, out of the ordinary, exceptional."

G. I. Chechel argues that "special cruelty is a higher qualitative and quantitative aspect of an act in relation to the concept of cruelty." He criticizes such formulations of special cruelty as “monstrous heartlessness”, “amazing severity”, “supernatural cruelty”, “manifestation of bestial instincts”, “extreme ruthlessness” and others, since they are vague and indefinite, do not reveal the content of the concept of “special cruelty”. and give nothing to practice.

In his opinion, “it is more correct to focus on identifying the “most acceptable forms of legal expression” of special cruelty in murder.”

Distinguishing "ordinary" cruelty from special cruelty in murder is not easy. However, it is necessary to do this, because only the presence of special cruelty in the act of the perpetrator forms the composition of a qualified murder.

In the specialized literature it is noted that the classification of an act as “simple” or especially cruel or not cruel at all depends not only on the assessments of the subject, his social affiliation and social status, moral principles and views, intelligence, culture, etc. The solution to this issue depends on the moral and psychological atmosphere in society and its values, on the level of morality and ideas about good and evil, the limits of violence in the social group to which that person belongs. executive, which should answer it.

Cruelty is a purely human trait; it does not exist in nature. "A wolf that kills a lamb is not cruel, because it acts by virtue of the instincts laid down in it by nature to satisfy the feeling of hunger."

However, a person who kills another person in order to achieve some of his base goals shows cruelty, because he realizes the immorality of his act. A person can show his cruelty towards all living beings. First of all, he manifests it in relation to his own kind. This human feature has long been noted in the words that “people are best able to store stones and metals, less plants, even less animals, and least of all a person.”

In its essence, cruelty is misanthropy. The philanthropist will not inflict torment and suffering on others, namely, the infliction of torment and suffering on other people is main feature cruelty.

Thus, a specialist in the field of the study of criminal cruelty, Yu. M. Antonyan, defines cruel behavior as “the intentional and meaningful infliction of torment and suffering on another person for their own sake or the achievement of other goals, or as a threat of such infliction, as well as actions by which the subject allowed or should have foreseen that such consequences would come.

In paragraph "and" part 1 of Art. 54 of the General Part of the Criminal Code of the Republic of Kazakhstan provides that “an aggravating circumstance of a crime is its commission with special cruelty, sadism, mockery, and also torment for the victim” .

The Special Part of the Criminal Code of the Republic of Kazakhstan contains a number of articles providing for increased liability for crimes against a person committed with particular cruelty. For example, these include:

P. "d" part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan (murder committed with special cruelty); - art. 102 of the Criminal Code of the Republic of Kazakhstan (incitement to suicide or attempted suicide through threats, cruel treatment or systematic humiliation of human dignity); p. "b" part 2 of Art. 103 and p. "c" part 2 of Art. 104 of the Criminal Code of the Republic of Kazakhstan (intentional infliction of severe and moderate bodily harm, committed with particular cruelty, mockery or torment for the victim, as well as against a person who is in a helpless state, obviously for the perpetrator); Art. 107 of the Criminal Code of the Republic of Kazakhstan (torture); and etc.

It is noteworthy that the legislator, along with the concept of “special cruelty”, in many articles of the Criminal Code of the Republic of Kazakhstan uses other concepts close to it, such as: “cruel treatment”, “systematic humiliation of human dignity”, “bullying”, "torment", "torture", "sadism", "infliction of physical or mental suffering", "use of the knowingly helpless state of the victim". At the same time, in paragraph "d" part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan, only one concept is used - “special cruelty”.

The Constitution of the Republic of Kazakhstan in Art. 21 provides that "the dignity of the individual is protected by the state, no one should be subjected to torture, violence, other cruel or degrading treatment or punishment" .

Such actions are considered by the Constitution of the country as a violation of human rights proclaimed in the Universal Declaration of Human Rights. Of particular interest in the context of the problem under consideration is the definition of torture given in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10, 1984, which states that “torture is understood to be any act by which a person is intentionally inflicted severe physical pain or suffering, physical or mental, by or at the instigation of an official, for the purpose of extracting information or confessions from him or a third person, punishing him for acts that he has committed or is suspected of committing. This concept does not include pain and suffering arising only from a lawful deprivation of liberty, in view of the condition inherent in this restriction of rights.

Thus, the concept of "torture" is associated with the infliction of not only physical, but also mental suffering by the norms of international law. The rules for the forensic medical determination of the severity of bodily injuries, approved by the order of the Ministry of Health of the Republic of Kazakhstan dated December 20, 2004 No. 875/1, distinguish between torment and torture by the nature of the action:

“Torment is an action that causes suffering by prolonged deprivation of food, drink or warmth, or by placing or leaving the victim in unhealthy conditions and other similar actions.

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

Therefore, torment is the infliction of suffering, and torture is the infliction of pain, but pain and suffering are practically the same thing. The difference is that suffering can be not only physical, but also moral. However, pain can be more than just physical.

In the explanatory dictionary of the Russian language, these concepts are revealed as follows:

“Torment is torment, suffering. Suffering is physical or moral pain, torment. To torture means to torture cruelly (physically or morally). To scoff is to make fun of someone or something in an insulting and offensive way. Sadism is a sexual perversion, in which the sexual feeling is satisfied by inflicting physical pain on another person, the desire for cruelty, the enjoyment of other people's suffering.

As we can see, it is very difficult to distinguish between the concepts used in the law. They are almost identical. Therefore, in criminal law, proposals are made to streamline the terms used.

Torment and torture is different ways harm to the victim, and torture is the deliberate infliction of suffering.

However, given that these and the above concepts mean inflicting either physical or moral suffering on the victim, or both at the same time, it should be concluded that they are all special cases of cruelty.

Thus, cruel behavior (cruelty) is the intentional infliction of physical and (or) moral suffering.

Cruelty includes torment, and torture, and torture, and bullying, and sadism, because all these definitions reveal different facets of one phenomenon - the infliction of physical and (or) moral (mental) suffering. It seems that special cruelty in the case of murder consists in inflicting special physical and (or) moral suffering on the victim, i.e. strong, sufficiently long, repeated or single suffering. (see appendix A)

The guilty person not only takes away the most precious thing that a person can have - his life, but also consciously, intentionally inflicts additional, strong, prolonged physical and (or) moral suffering. It is the combination of the process of killing with the conscious, deliberate infliction of additional, strong, prolonged physical and (or) moral suffering that is beyond the process of causing death, and forms the concept of "special cruelty".

This shows the inhuman ruthlessness and ruthlessness of the guilty person. One should agree with the opinion of the authors of the work “Crimes Committed with Particular Cruelty”, who stated that: “special cruelty is an accompanying or following violent crime, not obligatory for its commission and the onset of its usual consequences, a deliberate action (or inaction) consisting in causing the victim or his relatives additional, as a rule, severe, physical or mental suffering.

2. Criminal and legal characteristics of a murder committed with particular cruelty

2.1 Objective signs of a murder committed with particular cruelty

Pain and suffering are inflicted on the victim in almost every murder, but not in all cases it is recognized as committed with particular cruelty. Therefore, it is important to determine the criteria that would allow us to assert that the perpetrator caused the victim special (additional) physical and (or) moral suffering, based on the method of killing the victim chosen by the perpetrator.

The decision of the Plenum of the Supreme Court of the Republic of Kazakhstan “On judicial practice in cases of murder” dated July 27, 1999 notes that “the concept of special cruelty is associated both with the method of murder and with other circumstances indicating the manifestation of special cruelty by the perpetrator.”

It is emphasized that “there is a sign of special cruelty, in particular, in cases where, before the deprivation of life or in the process of committing a murder, the victim was subjected to: 1) torture; 2) torture; 3) the victim was mocked; 4) the murder was committed in a manner known to the perpetrator to be associated with the infliction of special suffering on the victim (causing a large amount of bodily harm, using a painfully effective poison, burning alive, prolonged deprivation of food, water, etc.); 5) the commission of a murder in the presence of persons close to the victim, when the perpetrator was aware that by his actions he was causing them special suffering; 6) mockery of a corpse, which in itself cannot be regarded as a circumstance indicating the commission of a murder with special cruelty.

Let us consider the circumstances that testify to the manifestation of special cruelty by the guilty, in the light of the signs of the objective side of the corpus delicti, taking into account the requirements related to the subjective signs of murder with special cruelty.

Objective signs of special cruelty in the murder can be recognized:

A method of killing that causes the victim to experience prolonged, severe physical pain and suffering;

The situation of the murder, indicating the infliction of special moral suffering on the victim or his relatives;

Other objective circumstances testifying to the manifestation of the perpetrators of special cruelty in the commission of the murder. (see annex B)

The law does not name the criteria for the method of murder, on the basis of which the deed should be recognized as committed with particular cruelty. "Unnecessary" suffering may be the goal of the perpetrator's actions or a by-product of his actions. They are "redundant" in terms of the death of the victim. At the same time, it is imperative to take into account that the infliction of additional suffering must be covered by the intent of the perpetrator, he must be aware that he is committing murder with special cruelty, foresee the infliction of not only death, but also unnecessary physical suffering, wish, consciously allow or be indifferent to both death and death. and to unnecessary, i.e., strong, prolonged suffering of the victim.

An analysis of judicial practice leads to the conclusion that courts often recognize a murder as committed with special cruelty in the absence of intent to inflict special (additional) suffering on the victim in the process of inflicting multiple wounds.

So, A. was erroneously found guilty of murder with special cruelty. A., on the basis of jealousy, decided to kill his neighbor R.. To this end, A. fraudulently took R. to the gardens of the village of Vishnevka, where he began to explain to him about his behavior, and then with two shots from a hunting rifle in the chest and head, killed him.

The court motivated the conclusion that A. had committed the murder with particular cruelty by the fact that, having shot R. at close range, A. “inflicted significant damage on him, crushed his jaw and teeth, nose and other parts of his face” .

Apparently, the court proceeded only from the nature of the injuries inflicted on the victim, without taking into account the content of the intent of the accused.

It seems that the mere fact of causing multiple injuries cannot serve as a basis for qualifying a crime as committed with particular cruelty. It is necessary to prove that the perpetrator acted with intent to commit a crime with particular cruelty.

Thus, Firaga was convicted unreasonably for attempted murder with particular cruelty. The crime was committed under the following circumstances.

After a quarrel motivated by jealousy, Firaga inflicted six wounds to Li with his knife in various parts of the body (buttocks, arms, legs, stomach). At Li's cry, her daughter Olya came running, who grabbed Firag by the hair and prevented the murder of her mother.

The regional court qualified Firar's actions under Art. 24 and p. "d" part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan. However, the Supreme Court, considering the case, pointed out that “there is no evidence in the case file that would confirm that Firaga, while attempting to kill, had the intention to inflict special torment on the victim Li, and one can only conclude that the infliction of several wounds was the result of his excited state.

Thus, it should be concluded that the number of injuries may not always indicate the intent of the perpetrator to inflict special (additional) suffering on the victim.

The multiplicity of injuries may be caused by other circumstances, indicating the absence of the perpetrator's intent to commit murder with particular cruelty.

For example, the lack of intent to kill with particular cruelty with multiple wounds may be due to: the characteristics of the weapon of crime (a shot from a short distance from a gun loaded with shot cannot but lead to multiple wounds; the weak lethality of the existing weapon); the presence of a guilty excited state caused by the wrong behavior of the victim (in the absence of grounds for recognizing the murder committed in a state of passion); a mutual fight between the perpetrator of the murder and the deceased, especially if in a quarrel

and the subsequent fight, the victim himself is to blame; causing damage in a short period of time; active resistance of the victim, overcoming which the perpetrator sought to cause death to the victim; the desire to hasten the death of the victim; the physical superiority of the victim, when the guilty person, who has less physical strength, is forced to inflict a large number of blows so that the victim cannot use his advantage in strength, etc.

When deciding on the presence or absence of special cruelty in the actions of the perpetrator in case of multiple injuries, one should proceed from the following circumstances:

1) the location of wounds and other injuries on the body of the victim (whether wounds were inflicted in the area of location of vital organs or not);

2) the nature of the wounds (force of impact, depth of wound channels);

3) murder weapons (the length of the knife blade, features of the charge in the weapon);

4) the time elapsed between the application of the first and last blows;

5) the ratio of forces of the killer and the victim;

6) the situation in which the perpetrator acted. (see annex C)

These circumstances may indicate either that the offender deliberately chose a method of murder that is especially painful for the victim (for example, inflicting bodily injuries that are obviously not life-threatening with a weapon with the use of which death could be caused immediately), or about the conditionality of causing a large number damage by the actual impossibility of committing a murder in a less painful way for the victim (lack of a more effective weapon, opposition from the victim or other persons).

An analysis of judicial practice indicates that a murder is recognized as committed with special cruelty and in the absence of direct intent to kill and the goal of showing special cruelty when inflicting multiple wounds on the victim. The plurality of injuries may be due to the desire to “teach a lesson” to the victim or for any other reasons, in the absence of direct intent to kill and the purpose of torturing the victim.

So, Novikov was convicted of murder with particular cruelty.

Novikov, the day before, received money at work during the day, and in the evening he drank with his wife. In the morning, Novikov, finding no money in his possession and believing that his wife had taken it, began to beat her: he knocked her to the floor and kicked her in the head, face, chest, stomach and other parts of the body. Novikova died on the spot from the beatings.

Considering the case, the North Kazakhstan Regional Court concluded that “the murder was committed with indirect intent, because Novikov struck in large numbers, with great force, and in the area of vital organs. Novikov acted in a particularly cruel way, as he trampled on a lying person with his feet.

The above example confirms that if the perpetrator acted with indirect intent, allowing death and special cruelty of his act, inflicting multiple wounds on the victim, resulting in his death, then the deed should be qualified as murder with special cruelty.

The following circumstances may indicate the intent to kill with particular cruelty when inflicting multiple wounds:

1) a conscious choice of such a murder weapon, the use of which could not but lead to multiple injuries;

2) the duration of the beating of the victim;

3) the onset of death of the victim as a result of pain shock;

4) the nature and localization of the existing injuries, the presence on the body of the victim of injuries characteristic of torture (cuts on the skin, cauterization, section, etc.);

5) significant physical superiority of the guilty person over the victim;

6) the nature of the beating of the victim (kicks, kicks, various objects in the area of the vital centers of the victim, etc.);

7) the situation of the incident, allowing the perpetrator to mock the victim, etc.

Murder is recognized as committed in a particularly cruel way, not only in cases of causing multiple injuries to the victim. It is not uncommon for the victim to lose his life in another way, which, under certain circumstances, can also be recognized as particularly cruel.

For example, the perpetrator takes the life of the victim while inflicting intense, prolonged physical suffering on him by giving him an extremely painful, slow-acting poison.

In judicial practice, questions often arise about the assessment of the most diverse actions of the perpetrator as a method of murder with particular cruelty. It seems that in all cases the problem should be solved only taking into account the subjective signs of the deed committed by the perpetrator.

So, Ionov and Smolyanina were convicted under paragraph "d" part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan.

In January 2003, they entered into a de facto marriage relationship. Smolyanina, being pregnant by another man, on May 30, 2003 gave birth to a boy. Ionov refused to raise someone else's child and wanted to leave Smolyanina. Then she told him that the child would not live long. On June 8, 2003, they conspired to poison the child with chlorophos.

In the verdict of the North-Kazakhstan Regional Court, it was stated “that poisoning with chlorophos objectively caused the victim severe, prolonged physical suffering in the form of suffocation. The intent of the perpetrators was that by their actions they inflicted strong, prolonged physical pain on a nine-day-old child by poisoning with chlorophos. Ionov and Smolyanina could not but realize and foresee that the suffering of the victim and the subsequent death would inevitably come. This means that, wishing for the death of the child, they wished or consciously allowed for his severe torment and suffering as an inevitable result of the use of chlorophos. Therefore, in this case, there is every reason to qualify what Ionov and Smolyanina committed as a murder with particular cruelty.

Particularly cruel methods of depriving the victim of life can include, for example, the following: burning the victim (both in cases where he is burned along with the building, and when the victim is directly set on fire); burying a living person; electrocution killing; dousing with acid, various cases of mechanical asphyxia (causing death by pushing earth or other loose and other materials into the mouth, putting a plastic bag on the head, repeated immersion of the victim's head in water); poisoning leading to prolonged suffering; deprivation of food, drink, heat and other similar actions.

It seems that the actions of the person who committed the murder in a way that was known to the perpetrator to cause the victim special suffering should be qualified as murder with special cruelty, regardless of whether the perpetrator really experienced special suffering or, for some reason, he was in the unconscious. condition.

The circumstances testifying to the commission of a murder with particular cruelty, taking into account the circumstances of the crime, can be conditionally divided into those relating to the victim and his relatives. In both cases, the particular cruelty of the guilty person is manifested. Let's consider the first one first.

The increased social danger of murder with particular cruelty is due to both the intense suffering of the victim and the exceptional ruthlessness of the killer. The suffering of the victim can be not only physical, but also mental, for example, mockery of the victim immediately before the murder is a sign of special cruelty.

The following example can be cited as an illustration: out of jealousy, he decided to kill his wife. He tied her up, tied to the bed, and began to tell how he would kill her, cutting off various parts of the body, while he defiantly sharpened the knife. The woman was crying, begging him to calm down. However, the mockery ended with a blow to the heart, which led to death.

The infliction of moral suffering on the victim is a manifestation of special cruelty during the murder. This can be expressed in mockery of the victim, such as: before the murder, the perpetrator describes the details of the planned crime, the actions that he will perform after the murder in relation to the relatives of the victim, deliberately delaying the moment of causing death, makes false attacks, repeatedly aims at the victim, touches the murder weapon to his body.

In our opinion, murder should be recognized as committed with special cruelty in cases where the perpetrator sought or actually caused the victim severe, prolonged mental suffering in the commission of a crime.

Since mockery is a malicious and insulting mockery, which can in no way be reduced to a method of committing a murder, then, therefore, from the point of view of the Plenum of the Supreme Court of the Republic of Kazakhstan “On judicial practice in cases of murder” dated July 27, 1999. "the mental suffering of the victim is the circumstances that give grounds for recognizing the murder as committed with particular cruelty."

Therefore, severe mental suffering inflicted on the victim before or during the deprivation of his life testifies to the commission of a murder with particular cruelty. Mental suffering can be caused to the victim due to various external circumstances preceding or accompanying the murder, covered by the intent of the perpetrator.

The situation of the crime may be characterized by the fact that the murder of one victim is committed in front of another.

Thus, B. was convicted by the regional court for the murder of his wife and her friend K. with particular cruelty. It was established that B. first struck K. on the head with an ax and then choked her until she ceased to show signs of life. Then he tied up his wife, who was right there, gagged her, raped her, and killed her with a few blows of a knife. The court emphasized that the convict's exceptional ruthlessness towards the victims -- salient feature behavior of a person who commits a crime with particular cruelty.

Murders with special cruelty should also include murders in the presence of the next victim, provided that the perpetrator was aware that the second victim understood the nature of his subsequent actions and their direction. The mere fact of the murder of two persons is clearly not enough to recognize that the crime was committed with particular cruelty. What has been done in such cases is covered by paragraph “a” of Part 2 of Art. 96 of the Criminal Code of the Republic of Kazakhstan. However, it is impossible to deny the fact of special cruelty in the case when the perpetrator killed one of his victims in turn in front of the next, enjoying their suffering.

It seems that the murder of several persons, one after another, in those cases should be recognized as committed with special cruelty, when the intent of the perpetrator covered the infliction of mental suffering on his victims by the fact of depriving them of life in turn. The victim, knowing that he is in the power of the guilty and will now be deprived of his life, like the previous victim, cannot but experience special mental suffering. If the perpetrator at the same time deliberately took the lives of the victims one after another, realizing that he thereby causes severe mental suffering to his victims, then the deed must be qualified as committed with special cruelty.

So, Loginov, Sokhitov and Abdullayev killed 7 people out of selfish motives, having previously undressed them, put them on their knees and shot them in front of each other for half an hour. Despite the fact that the very method of deprivation of life - a shot in the head - does not refer to particularly cruel, the circumstances in which this murder was committed indicate the presence of particular cruelty.

However, if the circumstances of the case testified that the intent of the perpetrator did not cover the infliction of special mental suffering on his victims, for example, the perpetrator killed two victims in the process of a mutual fight, first one and then the other, then the deed cannot be qualified as committed with special cruelty only on the basis of the fact of the murder of two persons.

Particular cruelty may manifest itself in other circumstances, for example, if the victim is forced to dig his own grave before the deprivation of life or otherwise mocked, then in such cases, even if the method of deprivation of life itself was not associated with special cruelty, the actions of the perpetrator should be regarded as murder with extreme cruelty.

One of the signs of the situation of a murder committed with particular cruelty is its commission in the presence of relatives of the victim.

In the decision of the Plenum of the Supreme Court of the Republic of Kazakhstan "On judicial practice in cases of murder" dated July 27, 1999. it is noted that "special cruelty can be expressed in the presence of persons close to the victim, when the perpetrator was aware that by his actions he was causing them special suffering" .

In judicial practice, problems sometimes arise regarding the recognition of certain persons as close to the victim.

The murder of one of the close relatives in front of another may not be considered as a manifestation of special cruelty. For example, in a mutual fight of several people, which arose on the basis of a quarrel, two brothers participated, one of whom was killed. Although formally a close relative was killed in front of another, the situation and nature of the act does not indicate the particular cruelty of the killer. Consequently, when recognizing special cruelty on the basis of causing significant moral suffering to the relatives of the victim, all the circumstances of the case, including the situation and method of committing the crime, must be taken into account.

The specificity of the content of the special suffering of the relatives of the victim is due to the fact that these persons, along with painful experiences of the very fact of the death of the victim, also experience the process of its infliction. As eyewitnesses, they first experience the horror of death threatening a loved one, then individual elements of the mechanism for depriving him of his life, and only after that - the very fact of his death. Moreover, the severity of their suffering is aggravated by the fact that at the first stages they are either powerless to protect the life of the victim, or they try to do it, but to no avail. These out-of-the-ordinary experiences, both in character and in strength, suffering, supplementing the “ordinary” severe ones, make the whole complex of suffering of the victim’s relatives extraordinarily, exceptionally severe, and therefore special.

An analysis of judicial practice shows that in some cases, the courts, when qualifying the deed as committed with particular cruelty, proceed only from the fact that relatives were present at the scene.

So, Ursu was convicted of murdering Murmur with particular cruelty.

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