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§ 2. Subjective signs of special cruelty

Each circumstance which can affect qualification of a crime, should be investigated not only in objective, but also in a subjective direction, i.e. it is necessary to investigate and the body of facts, testifying to the relation guilty to it.

The norm should be sacred for pravoprimenitelja, that the qualifying sign strengthening responsibility is made only in case of the relation of the person who have committed a crime [251] guilty to it. Therefore at revealing of signs of special cruelty for the purpose of reception of the fullest characteristics, it is necessary to address to perception the subject of its display, as the legislator

At designing of corpuses delicti with use of special cruelty has not specified, what should be to it the mental relation, in particular, for example, has not used the term "obviously".

For the sake of justice it is possible to notice, that the Supreme Court of the Russian Federation does not disregard the given question. So, in item 8 of the decision of Plenum of the Supreme Court of the Russian Federation №1 from January, 27th, 1999 «About judiciary practice on affairs about murder» [252] it is explained, that «for the murder recognition, made with special cruelty, it is necessary to establish, that the intention of the guilty covered fulfilment of murder with special cruelty» [253]. In the decision of Plenum of the Supreme Court № 16 from December, 4th, 2014 «About judiciary practice on affairs about crimes against sexual inviolability and a sexual personal freedom» [254] the previous recommendation actually repeats, in particular, in item 11 it is marked, «it is necessary to establish, that the intention of the guilty covered fulfilment of such crimes with special cruelty» [255], as well as in earlier operating decision of Plenum of the Supreme Court of the Russian Federation № 11 from June, 15th, 2004 « About judiciary practice on affairs about the crimes provided by articles 131 and 132 UK Russian Federation »[256].

Certainly, uniform position of the higher degree of jurisdiction regarding instructions on the deliberate relation guilty to special cruelty at committing a crime as a whole positively influences practice of application of the criminal law. However, use of concept "intention" without explanations of its essence, hardly promotes disclosing of its maintenance and consequently demands a concrete definition.

Important value in this connection is got by the recommendations developed by the theory of criminal law. The analysis of the criminally-legal literature shows, that there is no common opinion among scientists concerning the subjective
Relations guilty to special cruelty at committing a crime. All stated points of view on the basis of the general signs with a certain share of convention can be reduced to three positions.

The first position of scientists is based that committing a crime with special cruelty probably with two kinds of intention, and the relation guilty to a crime and special cruelty should be not obligatory identical, i.e. intention kinds can not coincide [257]. T.V.Kondrashova with reference to murder notices, that in relation to death is possible both a straight line and the eventual recklessness, but the relation of the subject to an applied way of the deprivation of life can be expressed only in the express intent [258].

S.V.Borodin notices, that guilty then operates with special cruelty when realises character of action, wishes or meaningly supposes the come result which special cruelty [259] is. A.Ignatov similarly believes necessary for the characteristic of intention guilty to establish, he wished or meaningly supposed, that its actions cause special sufferings to the victim »[260].

The position of the given authors in certain degree can explain, that as result of criminal behaviour guilty they consider special sufferings or as a whole special cruelty. And then finding-out of the strong-willed relation to consequences, such as «desire presence to cause special sufferings either their conscious assumption or the indifferent relation to them», becomes justified. However, we consider, that special cruelty is an additional sign at fulfilment of a various sort of crimes, and a sign, mainly, the objective party of the corpus delicti, and causing of special sufferings thus acts only qualitative it

The characteristic. Special sufferings should be considered as result of display of special cruelty, but the consequence status in criminally-legal sense they have no, as as such they are not fixed by the legislator. A straight line or the eventual recklessness can be established only with reference to obligatory sostavoobrazujushchim to the signs of this or that corpus delicti reflected in the criminal law. Special cruelty in such crimes can carry only qualifying value. In this connection, the statement, that at committing a crime with special cruelty the guilty operates with two intentions, one - in relation to a crime, and another - in relation to special cruelty of the actions, contradicts doctrine bases about fault in criminal law. Two kinds of intention at fulfilment of one crime cannot be. The intention as the fault form is defined in relation to a crime as a whole, instead of in relation to its separate signs. Artificial crushing of fault in the uniform simple corpus delicti concerning its separate signs is erroneous.

Thus, the crime with special cruelty is made only with one kind of intention, the orientation and which maintenance should

To be established in each concrete case.

At the heart of other position the statement, that a crime with the person lays

Cruelty can be made only with the express intent and with the special purpose - to cause to the victim special tortures and sufferings [261]. N.I. Sirs, in particular, approves, that especially severe way of fulfilment of murder specifies in those receptions and methods which are applied by the person at realisation of criminal intent and has the functional value to "provide" performance of the action directed on achievement of a definite purpose
(To cause special tortures and sufferings) [262]. With it expresses G.I.Chechel's consent, specifying, that making murder by especially severe way, guilty, undoubtedly, should know, that causes to a victim special tortures or sufferings, and wishes to deprive of the victim of a life in such a way. And this way of action should be selected guilty specially for the purpose of causing of special tortures and sufferings [263]. With reference to murder D.T.Shajkenova adheres to similar opinion also, specifying, that as an overall objective of fulfilment of murder with the express intent causing of death to the victim, and additional - drawing to it of special physical and mental sufferings and tortures [264] acts. R.M.Radzhabov also specifies in obligatory presence of the purpose to cause to a victim special tortures and sufferings at fulfilment of murder with special cruelty [265].

It is represented, that in this case as has fairly noted N.A.woman's, there is a purpose mixture as sign of the subjective party of the corpus delicti and purposefulness of actions on achievement of socially dangerous consequences as sign of the objective party of the corpus delicti [266]. Good causes in the law for the statement that the crime with special cruelty can be made only with the express intent, does not contain. Restrictions for qualification of murder, causing heavy or average weight of harm to health with special cruelty in the criminal law also are not present. Moreover, the question on the purpose can be put in criminal law only in the event that it is one of compulsory conditions of the criminal liability for the given crime, or it influences qualification
Crimes, however such purpose as «to cause to the victim special sufferings or tortures» in the criminal law does not contain.

From our point of view, taking into account that special cruelty in various corpuses delicti on a design is used by the legislator without instructions by sight intention and the special purpose the subjective relation of guilty display to the fact it of special cruelty can be opened only within the limits of that intention with which it committed a crime.

Thereupon, the position of scientists of is worthy that statement of a question on a kind of intention concerning special cruelty is wrong. They notice, that most adequately reflects subjective perception guilty, operating with special cruelty, expression that the guilty realised causing to a victim of special sufferings [267]. So, K.Sadreev and I.Muhamedzjanov argue in this occasion, that the intention assumes, that the guilty realises all actual facts of act, character of the actions and their consequence. To allocate separately kinds of intention concerning any actual facts including a way of committing a crime, especially severe character of actions, it is incorrect [268]. With reference to murder N.A. Woman's similarly notices, that comprehension or not comprehension of especially severe character of the actions does not render direct influence on definition of a kind of intention on causing of death, such intention can be both direct, and indirect as comprehension of special cruelty concerns sphere of an intellectual element of fault, instead of strong-willed and consequently does not predetermine the relation of causing of death guilty to the fact [269]. O.D.Sitkovskaja it is even more categorical, but fairly enough believes, that such sign of special cruelty, as comprehension guilty that its actions
Cause special sufferings to the victim or its relatives, it is necessary to fix in the legislation and practice [270].

Thereupon interest is represented by judiciary practice on the affairs connected with charge of the person in committing a crime with special cruelty. The analysis of judgements carried out by us has shown, that a common opinion among pravoprimenitelej concerning the subjective relation guilty to special cruelty at committing a crime also is not observed. And though in 18,2 % the analysed verdicts of guilty, the subjective relation guilty to special cruelty was not mentioned at all, as a whole opinions pravoprimenitelja on the given question is observed much enough. We will address to most often meeting. In particular, in 26,1 %

The analysed verdicts of guilty the basic arguments were reduced only to a comprehension establishment guilty causings of special sufferings, in 22,7 % - besides comprehension of the specified circumstances was spoken and about desire guilty them to cause, in 6,8 % - at an establishment of the subjective relation to special cruelty courts were limited to instructions that the intention of the guilty covered causing to the victim of special sufferings, in 4,5 % - that obviously for guilty the crime is connected with causing of special sufferings to the victim is specified only, in 4,5 % - courts besides comprehension of causing specified to the victim of special sufferings and in guilty knowledge of their causing [271].

Such disorder of opinions among judges testifies to absence of uniformity in practice concerning the subjective relation guilty to special cruelty at fulfilment of a crime by it. It lipshy time confirms a conclusion that the maintenance of the mental relation of the subject to

The special cruelty shown by it demands more exact and uniform

Interpretation.

Unfortunately, pravoprimenitelnoe a variety will not always be adjusted with a variety of a problem considered by us in the criminal law theory. So, opinion of that a crime with special cruelty probably with two kinds of intention, and the relation guilty to a crime and special cruelty should be not obligatory identical, i.e. intention kinds can not coincide. By the way we will notice, that in one of the analysed verdicts of guilty the specified model of a combination of two various intentions did not contain. Moreover, courts in the decisions do not divide intention on direct and indirect, do not open the relation guilty to a crime and to special cruelty separately from each other. It is possible to meet only instructions of vessels on the express intent guilty in relation to causing of special sufferings, however such variant of the argument takes place only in 3,4 % of cases. Sometimes courts in the decisions used special model of judgement - «realising and meaningly supposing causing of special sufferings». The similar semantic model testifies that pravoprimenitel considers the subjective relation guilty to special cruelty as made with eventual recklessness. On a share of the given variant 2,3 % were necessary only.

Other position of scientists in which basis the statement lays, that a crime with special cruelty can be made only with the express intent and with the special purpose - to cause to the victim special tortures and sufferings, does not find the support in judicial community. As it was specified earlier, in 3,4 % of cases courts specified in the express intent guilty concerning special cruelty, but thus did not name the purpose - causing of special sufferings. And only in 1,1 % cases at removal of a verdict of guilty courts were limited only to an establishment of such special purpose without instructions by sight intention guilty concerning a crime with special cruelty.

And, at last, the third position of scientists which is represented to us more preferably, consists that subjective perception guilty,

Operating with special cruelty, it should be expressed only that the guilty should realise causing to a victim of special sufferings. Such idea meets in pravoprimenitelnoj to practice more often other variants presented to the theories of criminal law. As it was specified earlier, in 26,1 % of cases at the decision of a verdict of guilty courts were limited to an establishment only the comprehension fact guilty causings of special sufferings to the victim. As has shown the judiciary practice analysis, the given expression at the characteristic of the subjective relation guilty vessels it is used often enough. Besides comprehension of causing of special sufferings courts specify in desire of their causing, quite often mention only understanding of causing of special sufferings. The judicial belief, that sometimes takes place, arriving definitely, guilty should realise causings of special sufferings, or the way selected it, obviously for the guilty is connected with causing of special sufferings. On a share of the similar argument of vessels it was necessary 59,1 % of cases of removal of a verdict of guilty with accent on comprehension of causing to the victim of special sufferings both separately, and in aggregate with other signs characterising the mental relation.

Results of the questioning spent by us in which frameworks before experts was are indicative in this plan the attention to the question «What is brought there should be a subjective perception guilty special cruelty at qualification of a crime to the given sign?» [272]. Answers of practical workers were meted as follows: 45,1 % interrogated have noticed what enough to establish, that the guilty realises causing of special sufferings to the victim, 52,9 % - have considered, that it is necessary to establish not only sensibleness, but also desire of causing guilty special sufferings, 2 % - have chosen other variant and have specified, that it is necessary to establish sensibleness and desire of causing guilty special sufferings not only to the victim, but also other present persons. As a matter of fact, other variant of the answer has specifying character of the previous variant of the answer. These figures have confirmed once again, that in practice, also as well as in a criminal law science, there is no uniform approach to understanding of the mental relation guilty to special cruelty that does not promote formation of the uniform is investigatory-judiciary practice. However, as the moment essential, in our opinion, in results of questioning that the majority of interrogated practical workers, choosing either the first, or the second variant of the answer in the offered form of interrogation where the sensibleness sign was used for the description of the mental relation guilty to special cruelty, thereby recognised it as one of characteristics of the subjective relation acts.

The appendix 2,3.

The specified sign of subjective perception guilty traditionally characterises the fault maintenance, in particular, its intellectual moment which is a component both direct, and eventual recklessness.

Unfortunately, in the law it is spoken about the relation of the guilty person only to act and its consequences, however it is held back the relation of a guilty crime to other signs, such as: a way, time, a place, conditions and other objective signs of a committed crime. Whether means it, what with reference to intention guilty they have no value? It is represented, that is not present.

In the criminal law theory the attention that comprehension by the person of socially dangerous character of the actions (inactivity) includes understanding of social value of all actual facts of made act is fairly paid.

So, A.I.Rarog notices, that «to comprehension of socially dangerous character of made act helps not only reflexion (at least in general) object of a crime, but also understanding of social value of all actual properties of made act. Place, time, a way, conditions of a committed crime which being included by the legislator in the objective party of a crime, contain the additional characteristic of act or omission concern such properties, become their individual
Actual signs. So, the robber realises not only the fact of withdrawal of another's property, but also that the property is abducted by open way »[273].

With reference to the crimes made with special cruelty, it is necessary to draw a conclusion that the actual facts testifying to causing of special sufferings to the victim, should be realised guilty, that is be covered by its intellectual moment

Intention.

Moreover, comprehension of a number from above described circumstances as certificates of display of special cruelty demands also an establishment, including comprehension guilty the maintenance of corresponding circumstances. So, murder in the presence of the loved one can be estimated as display of special cruelty if guilty it is known about presence of the close person at a place and at the moment of murder fulfilment, about their understanding of a picture of the committed crime, but also it is known about close relations between a victim and the witness of murder. Thus it is a question not simply of family relations, though also them not excluding, namely about close relations in which basis personal relations in which force they worry about a life, health and well-being each other lay. For this reason if someone hires the murderer for murder close there are no bases to speak about special cruelty of murder of the victim in the presence of such "close" person.

Besides comprehension of the social danger of act or omission the prediction or possibility of a prediction of socially dangerous consequences enters into an intellectual element of the maintenance of fault [274], as is known. And the prediction or possibility of a prediction of socially dangerous consequences as an intellectual element of fault is traditionally estimated at committing a crime with material structure and the legislator reflects such maintenance of fault in the criminal law. However, it does not specify, in our opinion,
On that in crimes with the formal corpus delicti the fault establishment is not required.

The strong-willed element of fault also is defined by a design of structure of a concrete crime. The strong-willed relation is defined to the main objective element essential to the offence in which the social danger of the given act is embodied. The strong-willed moment in material structures is always defined in relation to consequences. In formal structures the strong-willed maintenance of intention is settled by the strong-willed relation to socially dangerous actions (inactivity), and consists in desire to make socially dangerous act forbidden by the criminal law.

Discriminating line of the crimes made with special cruelty, consists that causing to the victim or other persons of special sufferings should be considered as features mainly a way or committing a crime conditions, or that and another simultaneously, but is primary always objective character.

Special cruelty can be shown both at fulfilment of crimes with material, and with the formal corpus delicti. The main thing, that at indirect, as well as at the express intent, with reference to various corpuses delicti on a design, the person should realise socially dangerous act, including all additional signs of the objective party of the corpus delicti which are considered as those, but influencing volume of the maintenance of the criminal liability. Special cruelty in the criminal law finds the reflexion as an additional sign in certain corpuses delicti. At the same time, it can be shown and at fulfilment of the most various kinds of crimes as special cruelty is considered by the legislator as aggravating punishment circumstance. That is why sensibleness guilty causings of special sufferings to the victim acts as an intrinsic subjective sign of special cruelty in any corpus delicti irrespective of its design. For definition of special cruelty at committing a crime it is necessary
To establish, that the guilty realises, that the actions causes to the victim special sufferings.

Special cruelty - estimated concept and an establishment of its signs including the subjective relation guilty, is within the competence of subjects pravoprimenenija. But, as it has fairly been noticed by N.A.woman's that inspectors, public prosecutors and the judges can consider especially severe, guilty can consider completely not especially and even it is simple not the severe. But if the guilty does not consider the actions especially severe, whether it is possible to recognise that as their those, after all the law demands, that the guilty operated with special cruelty? If to proceed especially from objective signs we can roll down to objective imputation. However and to consider not especially severe murder only because at guilty the perverted understanding of cruelty, would be unfair. Guilty should not estimate the actions as especially severe, and to realise those objective circumstances which presence is estimated by court as occurrence of special cruelty [275].

In this connection, at definition of the mental relation guilty to special cruelty it is necessary to establish the accurate legal criterion which presence will allow to give the unequivocal answer to a question, whether there is an intention on fulfilment of this or that crime with special cruelty. Such criterion should be established in signs of the intellectual moment, and be characterised by comprehension guilty special cruelty of the actions, namely comprehension of causing of special sufferings to the victim or other persons who are present at committing a crime.

We consider, that the sensibleness sign should not be considered as the unique characteristic of the subjective relation guilty to special cruelty, but the paramount role should be given to its establishment.

In the legal literature a lot of attention is given to a question on motives and the aims of crime, made with special cruelty. Concerning motivation of fulfilment of similar crimes there is many discrimination.

275

So, N.I.Zagorodnikov pays attention that murder with special cruelty can be made with various motives, in particular, for maintenance or acquisition of authority at other criminals [276].

According to G.I.Chechelja, in special cruelty at the deprivation of life the sadism element, i.e. aspiration to cruelty, pleasures by another's sufferings [277] is available in the way causing special sufferings and tortures to a victim, always.

M.K.Anijants notices, that more often murder with special cruelty is made from revenge, jealousy, hooligan promptings [278 [279] however are possible.

J.M.Antonjan specifies, that motives at fulfilment of murder with special cruelty have unconscious character, and they are often connected with aspiration to full physical destruction sustained as source of a heavy psychotrauma or full domination over ним2 ' 9.

O.D.Sitkovskaja allocates some motives of criminal severe behaviour. First, impulsive. It is formed under the influence of strong emotional reactions (for example, anger) which create readiness for corresponding offence. Secondly, it is tool motive, which characterises that the violence (severe, including) represents itself as means of achievement of the various illegal purposes. For example, tortures can be applied by the criminal to overcoming of resistance from the victim. Besides, as motive of committing a crime the aspiration to follow group traditions can act. And, at last, the violence, cruelty can act as end in itself. Causing of a pain to the victim, the humiliation of its advantage and mockery at it can have the unique purpose -
Causing of a pain in the absence of any rational purpose [280]. L.A.Andreeva, P.J.Konstantinov express the consent from O.D.Sitkovskoj, considering, that the given conclusions find the acknowledgement in judiciary practice [281].

According to item 73 UPK the Russian Federation, to the circumstances which are coming under to proving, concerns motive of action of the guilty person. However, under A.I.Raroga's remark, the majority of scientists at the analysis of motive of a crime involuntarily is displaced by accents in a plane of motivation of human behaviour in general, leaving from criminally-legal aspect. Undoubtedly, any conscious behaviour is motivirovannym and purposeful, however a question about

Motives and the purposes it can be put in criminal law only in the event that they are one of criminal liability compulsory conditions, or influence qualification of a crime, or as the circumstances softening or aggravating, come under to the account at awarding punishment [282].

The motivation of committing a crime with special cruelty, as well as the possible purposes of such behaviour is represented, that, in our opinion, can be any, but they matter only at intention proving on fulfilment of the given act, and an independent role as a part of this crime cannot play. Only in two cases taking into account specific motives the shown special cruelty, for example, at murder, excludes qualification under the item "d" ch. 2 items 105 UK the Russian Federation are a murder in a condition of suddenly arisen strong mental disturbance and with excess of requirements of justifiable defence or with excess of the measures necessary for detention of the person, committed a crime, as the preference at qualification here is given to exclusive structures (item 107 or item 108 UK the Russian Federation) [283].

Display guilty special cruelty at committing a crime can be end in itself of actions guilty, for example, at realisation of sadistic bents for satisfaction reception or to be used for achievement of certain result, for example, when for reception of any information guilty pytaet the victim. However, for imputation of a sign of special cruelty it is not required, that guilty operated with a definite purpose or was guided by certain motives, it is enough to establish presence at the subject comprehension of that it causes special sufferings. Thus, if at committing a crime with special cruelty the motive or the purpose of similar behaviour, including aspiration to cause special sufferings to the victim or other persons who, certainly, will testify to the raised degree of the social danger of such act the given circumstance is necessary for considering at is established

Awarding punishment.

On the basis of stated, it is possible to conclude, that at qualification of a crime on the basis of special cruelty irrespective of a corpus delicti design it is necessary to establish intention of the guilty person on causing to the victim, close to the victim and other persons of the special sufferings as which substantial component sensibleness of their causing acts.

Such characteristic of an intellectual element of the maintenance of fault of the crimes made with special cruelty, acts, in our opinion, as one more legal sign necessary for an establishment of analyzed estimated concept.

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A source: Menshikova Anna Gennadevna. SPECIAL CRUELTY: MEDICAL And CRIMINALLY-LEGAL ASPECTS. The DISSERTATION on competition of a scientific degree of the master of laws. Ekaterinburg -. 2015

More on topic § 2. Subjective signs of special cruelty:

  1. § 1. Objective signs of special cruelty
  2. § 3. Legal fastening of the signs defining special cruelty
  3. Chapter 2. Constant signs of special cruelty and their legal fastening
  4. § 2. Sufferings as an obligatory sign of special cruelty: the mediko-legal analysis
  5. § 1. Formation of special cruelty as teoretiko-legal concept
  6. Chapter 1. Special cruelty as an interdisciplinary category
  7. Otgranichenie evtanazii from murder of the person, nahodjashchegosjav the helpless condition, made with special cruelty and with a view of use of bodies or fabrics of sustained
  8. subjective signs of terrorism
  9. § 3. Interrelation of special cruelty with adjacent and competing categories: torture, torture, torture, mockery, mockery, a sadism
  10. § 2. Subjective signs of act of terrorism
  11. Subjective signs of a negligence
  12. §4. Subjective signs of extortion.
  13. Menshikov Anna Gennadevna. SPECIAL CRUELTY: MEDICAL And CRIMINALLY-LEGAL ASPECTS. The DISSERTATION on competition of a scientific degree of the master of laws. Ekaterinburg -, 2015 2015
  14. subjective signs of criminal trespasses on the confidential information
  15. § 1. Classification of facultative signs of the subjective party of the corpus delicti [367]
  16. subjective signs of swindle