of December 17, 2002 No. 9
About court practice on cases on murder (Art. 139 of UK)
Having discussed materials of generalization of court practice, for the purpose of ensuring the correct and uniform application by courts of the penal statute about responsibility for murder the Plenum of the Supreme Court
1. Draw the attention of courts that intentional illegal deprivation of life other person (murder) is especially serious crime for which making purpose of the most stiff punishment from UK provided by Art. 48 is possible.
By consideration of criminal cases about murder it is necessary to fulfill strictly requirements of the law on comprehensive, complete and objective investigation of circumstances of the committed crime.
On each such case the fault form shall be established, motives, the purpose and method of causing death are found out, and also other circumstances important for the correct legal treatment of deeds and appointment to the guilty person of just punishment are researched.
2. Murder can be committed both with direct, and with indirect intent. Attempt at murder is possible only with direct intention i.e. when the deeds demonstrated that the guilty person understood public danger of the action (failure to act), expected approach of death of other person and wished it, but death did not come owing to circumstances (in view of the active resistance of the victim, intervention of other persons, timely rendering medical care to the victim, etc.).
In case of validity of attempted homicide of additional qualification of actions of the guilty person by results of the effects which came for the victim it is not required.
3. Courts need to delimit murder from intentional causing the heavy bodily harm which entailed the death of the victim on imprudence, meaning that in case of murder the intention of the guilty person is directed to deprivation of the victim of life, and in case of crime execution, UK provided by the p. 3 of Art. 147, the relation of the guilty person to approach of death of the victim is expressed in imprudence.
Establishing intention of the guilty person, courts shall proceed from set of all circumstances of deeds and consider, in particular, method and the tool of crime execution, quantity, nature and localization of wounds and other bodily harms (for example, wounds of vitals of the person), the reasons of the termination of criminal acts, etc., and also prior behavior of the guilty person and victim, their relation, nature of actions of the guilty person after crime execution.
4. Draw the attention of courts that according to p.1 Art. 139 of UK the murder committed without the aggravating circumstances specified in the p. 2 of Art. 139 of UK and in the absence of the bases for qualification of actions of the guilty person on st.st.140-143 by UK is qualified.
5. In case of murder of two or more persons the deeds should be qualified according to item 1 of the p. 2 of Art. 139 of UK if actions of the guilty person were covered by common intent and were made, as a rule, at the same time, without gap in time or with insignificant gap.
If murder of two or more persons is committed with gap in time, qualification of actions of the guilty person according to item 1 of the p. 2 of Art. 139 of UK requires availability of the single direct intention on murder of two or more persons which arose before making of the actions directed to deprivation of life at least of one person and unity of the purpose.
If in the presence of direct intention on deprivation of life of two or more persons murder of one person and attempt at life of another (others) are committed, then the deeds cannot be considered as completed crime - murder of two or more persons and are subject to qualification according to p.1 Art. 139 of UK or the corresponding Items of the p. 2 of Art. 139 of UK (except for the item 1), p.1 Art. 14 and item 1 of the p. 2 of Art. 139 of UK.
6. For qualification of murder according to item 2 of the p. 2 of Art. 139 of UK (juvenile, aged or person which is down and out) it is necessary to determine that the guilty person obviously knew about juvenile or old age of the victim or about finding of the victim down and out.
It is necessary to understand such condition which deprives of the victim of opportunity owing to its physical or mental condition to show to the criminal active resistance, to evade from encroachment or to otherwise resist to it as helpless. It is possible to carry to persons which are down and out, in particular, or suffering from the mental disturbances depriving of their capability the events are correct to perceive seriously ill patients.
Conclusion of court about finding of the victim down and out should be based on assessment of all facts of the case in total and to motivate properly in sentence.
In case of murder obviously juvenile or aged imputation of the additional qualifying sign "murder of person who is down and out" is not excluded.
7. Courts should mean that according to item 3 of the p. 2 of Art. 139 of UK qualifications of action of the guilty person who was obviously knowing about pregnancy of the victim are subject. Motives of murder for such qualification do not matter.
If the guilty person killed the victim, mistakenly believing that she is pregnant, the deeds should be qualified according to p.1 Art. 14 and item 3 of the p. 2 of Art. 139 of UK.
8. Explain to courts that it is necessary to understand deprivation of human life as the murder integrated to kidnapping or taking of the hostage (item 4 of the p. 2 of Art. 139 of UK) during its stealing or capture as the hostage or during deduction of such person, and also for refusal to perform any operations under condition of release of the hostage.
According to item 4 of the p. 2 of Art. 139 of UK not only murder of the kidnapped person or hostage, but also other persons in connection with kidnapping or taking of the hostage is qualified.
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