Differentiation of responsibility for crimes against the person: evolution in Russian criminal legislation

Vanyan Diana Nikolaevna Postgraduate student; Department of Criminal Law and Criminology; Kuban State University 149 Stavropol str., Krasnodar, 350040, Russia mail_23.rus@mail.ru

Crimes against the person were committed in primitive society. With the appearance of the first forms of social organization (kindred, neighboring communities), members of society inevitably came into contact with each other and often in conflict and violent forms, acquiring a socially dangerous character ^{[1, p. 22]}. The mechanism of countering such forms of interaction in the early stages remained primitive and, as a rule, included only legal customs (the talion principle, blood feud, etc.). However, as a result of the emergence of Russian statehood and the development of law, written criminal law prohibitions began to appear, which differentiated responsibility for attacks against a person.

The relevance of the research topic lies in the fact that attention has been paid to the issue of differentiation of responsibility for crimes against the person since ancient times and today we can talk about the whole institution in this field, which, despite its long history of formation, remains the main and main method of criminal law policy.

The practical significance of the study lies in the fact that its results may be of interest to specialists in the field of criminal law, as well as teachers and students of law schools and faculties interested in the differentiation of criminal liability.

The purpose of the study is to study the evolution of Russian criminal legislation in the field of differentiation of responsibility for crimes against the person. The objectives of the research are: to conduct a historical and legal review of the main sources of criminal law of the X-XX centuries in terms of the approach reflected in them to the differentiation of responsibility for crimes against the person; to analyze the formation of an appropriate mechanism of criminal law protection; to consider, on the example of historical monuments of Russian criminal law, the features of the construction of qualified and privileged compositions of crimes against the person, methods of their construction and presentation in the text of the criminal law.

To conduct an objective and comprehensive consideration of the chosen topic, the article uses such general scientific and private research methods as dialectical, logical, historical, comparative legal, formal legal, etc. The methodological apparatus consists of the following dialectical methods of scientific cognition: abstraction, induction, deduction, hypothesis, analogy, synthesis, and the use of typology, classification, systematization and generalization can also be noted.

The result of the study was the formation of the author's periodization of the evolution in Russian criminal legislation of the differentiation of responsibility for crimes against the person.

A comprehensive study of the differentiation of responsibility for crimes against the person, in the context of the evolution of Russian criminal legislation, has not been conducted by domestic criminologists. Such authors as D.J. Gostkova, E.V. Kaburneev, M.N. Kaplin, K.A. Kretova, R.Y. Smirnov, and others made their own contribution to the study of the history of differentiation of criminal liability for crimes against life and health. Certain features (for example, motive, victim), as a means of differentiating criminal liability for crimes against personality, life or health, were considered by S.A. Markaryan, E.V. Pakhomova, etc.

The starting point of the development of Russian criminal law in the field of differentiation of responsibility for attacks against the person are the Treaties of Russia with Byzantium in 911 and 944. So, for example, the 911 Treaty provided for liability for murder (Article 4) and injury to health (Article 5). These acts were also mentioned in Article 6 ("... and the thief will be captured by the victim at the very time when he commits theft, while he resists and will be killed") and v. 8 ("if it happens that any of those who arrived on that boat will be killed or beaten by us..."). Similar criminal law prohibitions were contained in the Treaty of 944, and the novel was the criminalization of the enslavement of shipwrecked Greeks (Article 9) and the prohibition on the massacre of a murderer at the scene of a crime (Article 13).

The range of crimes against the person in Russian Pravda has significantly expanded. Thus, this legal act (a lengthy version according to the Trinity List) provided for criminal liability for committing crimes against life, against health, against freedom, honor and dignity.

The greatest attention was paid by the Russian Truth to the regulation of responsibility for murder as the most dangerous crime against life ^{[6, p. 17]}. This legal act, according to the correct remark of V.G. Balkova and D.A. Neretina, provided for two types of murder – murder "at a feast" (Article 6) and "murder on robbery without any quarrel" (Article 7) ^{[3, p. 267]}. The basis for the identification of these types of murders is based on signs of motive and form of guilt, differentiating murder into unintentional and intentional ^{[5, p. 47; 7, p. 99]}. The Russian Truth (Short edition) also distinguished the types of murders at the place of their commission – near a cage, a horse, a cow herd ^{[8, p. 114]}.

Crimes against personal health included beatings and self-mutilation (amputation of limbs, fingers, deprivation of an eye). Individual encroachments of this category were isolated in independent norms depending on the instrument of the crime (Articles 23, 25). Infliction of death as a result of beatings was considered as a qualifying sign (Article 30).

The novel was the consolidation in the Russian Truth of the norms on responsibility for crimes against freedom, honor and dignity. Thus, an encroachment on human freedom was called enslavement (V. 54). Russian Truth also provided for responsibility for the kidnapping of the servant (Article 38).

A crime against honor and dignity, as T.N. Nurkayeva rightly notes, was considered a personal insult, which meant only beatings, but not a verbal form of humiliation ^{[9, p. 7]}. At the same time, the author does not note that this category of crimes included pulling out a beard (Article 67), the main direct object of which was considered dignity, although it implied bodily injury. Thus, according to S.S. Omelchenko, the norms of Russian Truth did not distinguish between crimes against health and honor, and the latter actually merged with bodily injury. Thus, only a real offense was recognized as an encroachment on honor ^{[10, p. 240]}.

All crimes of the group in question were differentiated into attacks with aggravating or mitigating circumstances. As mentioned earlier, the criteria were the motive and form of guilt (murder in robbery), the instrument of the crime (infliction of bodily harm). In addition, the signs of the subject and the victim – their social and property status - should be considered as differentiating features.

Most of the legal norms of the Russian Truth were reflected in the sources of the period of centralization of the Russian state – the Judicial Records of 1497 and 1550. The object of the crime was not differentiated in these acts. Thus, in the Judicial Code of 1497, personal attacks were mentioned along with other types of crimes, including crimes against property (Articles 7-9, 38-39) ^{[10, p. 54]}. Qualified types of murders were distinguished – the murder of a gentleman committed by his servant ("the sovereign's murderer"), and a murder committed by a "driven dashing man". The novel of the Judicial Code of 1497 was the regulation of criminal liability for tattling ("malicious slander"), which was considered an insult to honor. Criminal liability for insulting by action and word was also provided for by the Judicial Code of 1550 (art. 25). In this regard, obviously, one cannot agree with N.E. Bespalov in the part that for the first time responsibility for libel was introduced in the Military Article ^{[4, p. 149]}.

The differentiation of criminal liability for crimes against the person was further developed in the Cathedral Code of 1649. The elements of crimes against the person were described in Chapters XXI, XXII of this legal document. As before, among crimes against the person, murder received detailed regulation, the main and qualified components of which were formulated mainly in Articles 69-73 of Chapter XXI. First of all, murder was differentiated into intentional, entailing the death penalty (Article 72 of Chapter XXI), and unintentional ("not by intent in a fight, by drunken deed"), the penalty for which was determined depending on the presence of other subjective and objective signs. It seems that murder in a fight or while intoxicated should be considered as a privileged part of the murder, and the differentiation of responsibility for its commission was carried out on the basis of the subject and the victim. Thus, a peasant, when killing a peasant, was whipped, bailed out with a written obligation from the guarantors to prevent relapses and was transferred with his wife, children and property ("bellies") to the one from whom he killed a peasant (v. 73, Chapter XXI). Another punishment was provided for the boyar in the murder of a peasant – the transfer of the best peasant with his wife, children and property to the one from whom he killed the peasant (Article 71 of Chapter XXI). Qualified types of murder were also described in Chapter XXII of the Council Code.

The Conciliar Code of 1649 provided for liability for individual attacks on personal health – beatings and self-mutilation (for example, Articles 10, 11 of Chapter XXII). Beating parents was punishable by whipping (art. 4 ch. XXII).

An insult was considered an encroachment on the honor and dignity of a person, the objective side of which no longer merged with the infliction of bodily injury. Thus, the Conciliar Code of 1649 provided for liability for insulting with an "unbecoming word", that is, verbal humiliation directed against the honor of any person, up to the sovereign (Articles 99, 105 ch. X) ^{[10, p. 244]}. For the first time in the Cathedral Code of 1649, norms on criminal liability for sexual crimes appeared (for example, in Article 30 of Chapter VII, the composition of rape committed by a serviceman while following him into service was described).

The adoption of the Military Article in 1715 led to a tightening of the criminal law policy in the field of countering crimes against the person. This was mainly reflected in the normative construction of new qualified homicide compositions and the expansion of types of punishments.

For the commission of any murder according to the Military Article of 1715, the death penalty was provided, various forms of which were applied depending on the severity of the crime committed. Thus, simple murder was punishable by death in the form of beheading (Art. 154), and murder with aggravating signs, which included, for example, murder by poisoning, murder of parents and a child in infancy, murder in a duel, etc., – the death penalty by wheel, that is, the most painful form of its execution (Art. 161, 162, 163).

The death penalty was also provided for attempted suicide, which could be replaced by punishment in the form of expulsion from the regiment if the motive for the crime was torment, annoyance, shame or unconsciousness (Art. 164). Realized suicide was also considered a crime punishable by mockery of the corpse of the perpetrator ("drag his body to a dishonorable place and bury it, dragging it through the streets or a wagon train").

In the system of crimes against health, the military Article distinguished mutilation and beatings – stabbing with a knife, cane or hand on the cheek (Art. 85, 143-146). As before, these attacks were simultaneously considered as an insult by action, which is noticeable in the analysis of sanctions. So, for hitting another person with his hand on the cheek, punishment was imposed in the form of public humiliation – the culprit was publicly hit by a profos (a lower military rank who supervised the cleanliness of latrines, intimacy with him was humiliating) ^{[5, p. 292]}. Verbal humiliation was also an insult, including slander, the object of which was considered not the honor of a particular person, but the interests of the state, since honor in this historical period was inseparable from state or official position ^{[10, p. 246]}. Thus, insulting the tsar was punishable by confiscation of property and beheading (art. 20). The said legal act expanded the range of acts now recognized as sexual crimes, establishing criminal liability for involuntary sexual intercourse (art. 167-168).

Until the middle of the 19th century, the criminal legislation did not undergo any changes. However, the development of public relations and the accumulation of a large array of normative material predetermined the need for large–scale codification of legislation, which resulted in the publication of the Code of Criminal and Correctional Punishments of 1845 (hereinafter referred to as the Code), rightly called the first Criminal Code, in which the General and Special Parts were distinguished ^{[11, p. 70]}. The norms providing for liability for attacks against the person were concentrated in the section. X Regulations ("On crimes against the life, health, freedom and honor of private individuals").

The Code divided murder into premeditated ("with premeditated intent or intent"), unintentional ("without premeditated intent or intent, in anger or irritation") and accidental ("not only without intent, but also without any carelessness"). As T.N. Nurkayeva points out, the Code described 41 types of qualified murders ^{[9, p. 10]}. Among the aggravating signs were the properties of the victim (murder of parents, children, spouse and other relatives; boss and master; pregnant woman – Articles 1920, 1922, 1923). Qualified murder compositions were also described in art. 1924 of the Code (murder by arson, destruction of buildings, shots fired into a crowd, poisoning; murder involving torture or torment; murder involving theft). When differentiating responsibility for murder, recidivism was also taken into account (Article 1921). Privileged types of murder included the murder of an illegitimate child by a mother at the very birth of an infant out of shame or fear (art. 1922), as well as murder in a fight and when exceeding the limits of necessary defense (art. 1936-1938). As before, suicide and attempted suicide were considered as crimes (chap. 2 sec. X of the Code).

Crimes against health were devoted to Chapter 3 of the section. X of the Code, which highlighted a fairly large list of encroachments of this type without building their system. Thus, the crimes against health included mutilation and wounds of varying severity (loss of vision, hearing, tongue, limbs and other parts of the body, indelible disfigurement of the face). When differentiating responsibility, various objective and subjective signs were taken into account – the motive, method and instrument of committing a crime, socially dangerous consequences (mutilation associated with torture; in a passion or irritation; entailed death, etc.).

The Code also expanded the list and created a system of sexual crimes, the specific object of which was considered honor, and the immediate honor and chastity of a woman (chap. 6 Sec. X). At the same time, when building their system, the age of the victim was taken into account, which allows us to talk about the division of sexual crimes into encroachments against sexual freedom and sexual integrity.

The Code also provided for liability for attacks on a person previously unknown to Russian criminal law – intentional termination of pregnancy without the consent and knowledge of a woman (Article 1932); a duel inflicted on someone (Article 1970); leaving a person in danger and not providing assistance to the deceased (Chapter 5 section X).

A new stage in the development of criminal legislation in the field of differentiation of responsibility for crimes against the person is associated with the adoption of the Criminal Code of the RSFSR in 1922. The content of the murder included both intentional and reckless deprivation of life. The legislator perceived continuity in the regulation of qualifying and privileged signs of murder. When forming a system of aggravating signs, the motive (greed, jealousy and other base motives), the purpose (in order to facilitate or conceal another serious crime), the method of committing murder (generally dangerous or painful for the victim), as well as the properties of the subject and the victim (art. 142) were taken into account ^{[2, p. 79]}. The motive of compassion in the original version of the Criminal Code of the RSFSR of 1922 was considered as a circumstance excluding criminal liability.

The Criminal Code of the RSFSR of 1922 differentiated attacks on health according to the criterion of severity (severe, less severe, light). Other crimes of this group included reckless bodily injury, striking or other violent acts that caused physical pain. In addition, the system of attacks against health began to highlight the infection of another person with venereal disease, which was previously known to Russian law, but was considered an attack on public health.

The advantage of the Criminal Code of the RSFSR of 1922 should be called a clearer regulation of responsibility for attacks on the honor and dignity of the individual. Thus, the legislator formulated the concept of libel (Article 174) and provided for liability for insult without giving its definition (Articles 172-173). Deliberately false denunciation, deliberately false testimony and hooliganism were also considered an encroachment on dignity.

Crimes against sexual freedom were concentrated in section 4 of Chapter 5. In addition to the elements of rape and sexual intercourse with minors, such crimes as intercourse involving the molestation and satisfaction of sexual passion in perverted forms (Article 167), coercion into prostitution (Article 170), pandering, the maintenance of brothels of debauchery, as well as the recruitment of women for prostitution (Article 171).

In many ways, the principles of building a system of crimes against the person and regulating responsibility for their commission were adopted by the Criminal Code of the RSFSR in 1926. The norms on responsibility for murder have not undergone significant changes, with the exception of some features of the presentation of dispositions of criminal law norms and tougher sanctions. The novel was the introduction since 1936 of a new composition of premeditated murder – murder committed by a serviceman under particularly aggravating circumstances, for which the death penalty was established in the form of execution (part 2 of Article 136). In addition, the Criminal Code of the RSFSR of 1926 provided for liability for incitement to suicide (Part 1 of Article 141).

Separate changes affected the system of crimes against health – all bodily injuries in accordance with the Criminal Code of the RSFSR in 1926 were divided into two types: serious and light. In addition, the legislator introduced an additional feature for determining the severity of bodily injury – a health disorder associated with significant disability (Article 142).

The system of crimes against freedom, honor and dignity of the individual remained the same. It is important that the legislator in the Criminal Code of the RSFSR in 1926 provided a detailed definition of libel, which is accepted by the current legislation. In addition to the previously known compositions of sexual crimes, the Criminal Code of the RSFSR of 1926 provided for liability for sodomy (part 1 of Article 154-a), and the composition of rape was supplemented with new qualifying signs.

It is also worth noting that in the Criminal Code of the RSFSR in 1926, the list of violations of citizens' rights was expanded, mainly in the field of labor relations (Article 133a).

The adoption of the new Criminal Code of the RSFSR in 1960 marked the intensification of criminal law repression for attacks on the person. First of all, this is due to a significant revision and expansion of the list of qualified types of murder. Article 102 of the Criminal Code of the RSFSR of 1960 consistently described 11 qualifying signs of murder, most of which are practically unchanged perceived by the current Criminal Code of the Russian Federation.

It should be noted that all attacks on the person in the Criminal Code of the RSFSR in 1960 were structurally isolated in a single chapter with a consistent statement of criminal law prohibitions. At the same time, the norms on responsibility for attacks on health were built in the form of a clear system that included: 1) crimes against health (Articles 108-115); 2) crimes endangering life and health (art. 116, 122, 124, 127-129) ^{[9, p. 30]}. In addition, the basis for the construction of this system was again based on the division of bodily injuries into severe, less severe and light.

The regulation of liability for crimes against freedom, honor and dignity has not undergone significant changes. Thus, the Criminal Code of the RSFSR in 1960 for the first time defined the concept of insult as a deliberate humiliation of the honor and dignity of a person expressed in an indecent form. In addition, the system of crimes against freedom was supplemented with two types of crimes – hostage-taking (Article 126.1) and kidnapping (Article 125.1).

Sufficient attention in the Criminal Code of the RSFSR in 1960 was paid to the regulation of liability for encroachments on the rights of citizens, the list of which was fixed in an independent chapter (Chapter IV). Among them, independent elements of crimes encroaching on the personal life of citizens were provided (Articles 135-136 of the Criminal Code of the Russian Federation).

While retaining, with minor changes, responsibility for crimes against the family and minors contained in the Criminal Code of 1926, the Criminal Code of the RSFSR of 1960 provided for liability for a number of new, previously unknown, encroachments (Articles 124.1, 125.2, 210.2).

Many provisions of the Criminal Code of the RSFSR of 1960, providing for liability for attacks against the person, were accepted by the current Criminal Code of the Russian Federation of 1996, including continuity in the construction of their system and the presentation of relevant criminal law prohibitions. At the same time, the specifics of the Criminal Code of the Russian Federation in 1996 became a completely different system of values, at the head of which the personality was put. This predetermined the isolation of all crimes against the person in a single section, which opens a Special part of the Criminal Code of the Russian Federation and is divided into specific chapters.

Thus, based on the study of the evolution of Russian criminal legislation in the field of differentiation of responsibility for crimes against the person, it is possible to formulate the author's periodization in this area:

1. The period of the origin of differentiation of criminal liability for attacks against a person (X century – the end of the XV century). The history of the development of Russian criminal legislation indicates that attention has been paid to the differentiation of responsibility for crimes against the person since ancient times, which is associated with the adoption of such legal acts as the Treaties of Russia with Byzantium in 911 and 944 and Russkaya Pravda. It is characterized by the appearance of separate signs in the latter, differentiating responsibility for these encroachments. These signs were regulated haphazardly, and the technique of their presentation was characterized by casuistry.

2. The period of legislative expansion of the signs differentiating criminal liability for crimes against the person (the end of the XV century.– the middle of the XIX century.). Is associated with the adoption of such legal acts as the Judicial Codes of 1497 and 1550, the Cathedral Code of 1649 and the Military Article of 1715. Its peculiarity was that the construction of qualified and privileged compositions of crimes against the person was carried out haphazardly, sometimes casually.

3. The period of formation of the system in the field of using the legal structure of qualified (privileged) structures, which was expressed in the consistent, but sometimes haphazard construction of new differentiating features, the number of which, in relation to individual attacks against the individual, amounted to several dozen (mid–XIX century - XX century). Associated with the adoption of the first codified criminal law in Russia, in which the General and Special parts were distinguished – the Code of Criminal and Correctional Punishments of 1845 .

4. The period of formation (formation) of the institute of differentiation of criminal liability for crimes against the person (the beginning of the XX century – 1996). Criminal legislation is characterized by the unification of the system of qualified (privileged) elements of crimes with a parallel reduction in the number of differentiating features and a departure from the casuistic presentation of criminal law prohibitions. This period is associated with the adoption of the Criminal Code of the RSFSR in 1922, 1926 and 1960.

5. The period of development and optimization of the institution of differentiation of criminal liability for crimes against the person (1996 – our time). It is connected with the adoption of the Criminal Code of the Russian Federation in 1996. It is characterized by the attitude towards this institution as the main and main method of criminal law policy, the application of which, including crimes against the person, requires further reflection and improvement.