Peculiarities of establishing certain circumstances to be proved in the investigation of crimes under Article 106 of the Criminal Code of the Russian Federation

Dulepina Ol'ga Viktorovna Master's degree in Law; Kuban State Agrarian University named after I.T. Trubilin 350000, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 budzzzhe6@mail.ru Vlez'ko Dmitrii Aleksandrovich PhD in Law Associate Professor; Department of Law; Kuban State Agrarian University named after I.T. Trubilin 350000, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 projects16@yandex.ru

Demenkov Vladimir Aleksandrovich Master's degree in Law; Kuban State Agrarian University named after I.T. Trubilin 350000, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 vladimir.demenkov88@gmail.com

Currently, there is a demographic crisis in Russia, on the basis of which crimes related to the sole granting of mothers of newborns the imaginary right to dispose of their lives constitute an extraordinary threat, the suppression of which is the duty of the state, performed through the work of law enforcement agencies.

However, the murder of a newborn by his mother is separated from the murder of a newborn by any other person as a special type of murder – privileged, assuming that the mother has a complicated mental state, which is associated with the postponed process of childbirth and a number of other reasons. And yet this is not an axiom, because such murders are often committed purposefully. It is the question of the presence and degree of influence of a traumatic situation that is one of the circumstances to be proved in the investigation of this crime.

The problem of infanticide is widely covered in scientific research circles: such domestic scientists as T. A. Kapitsa, A. N. Popov, Yu. M. Antonyan, A. L. Karasova, L. I. Murzina, M. R. Chalyeva, A. N. Krasikov were engaged in its development through writing scientific articles, abstracts and dissertations, textbooks and others, which makes the degree of study of this topic relatively high. At the same time, there is an obvious lack of fundamental scientific works that reveal the basic provisions of this topic.

The methodological basis of this scientific work consists of a number of general scientific theoretical research methods, including analysis, induction, deduction, analogy, generalization, comparison and abstraction, as well as special sociological and psychological methods. In addition, qualitative methods such as document analysis and surveillance were used.

According to modern Russian legislation, infanticide is considered to be the deprivation of life by a mother of her newborn child in a traumatic situation or in a state of mental disorder that does not exclude sanity – accordingly, the listed legal categories need more detailed analysis and scientific elaboration, since their legislative, scientific and practical regulation is practically absent, which inevitably leads to legal mistakes and violations of citizens' rights. Article 106 of the Criminal Code of the Russian Federation provides for a more lenient punishment due to certain circumstances in the presence of which this crime is committed, in the absence of such, it should be qualified as murder with aggravating circumstances (instead of privileged murder). The difference in the terms of punishment is significant – up to 5 years under Article 106 of the Criminal Code of the Russian Federation and life imprisonment for qualified murder (paragraph 2 of Part 2 of Article 105 of the Criminal Code). The task of the investigator is to fully and objectively establish all the accompanying circumstances that are subject to proof in this category of cases in order to impose a fair punishment.

It is worth noting that the state of the traumatic situation with this composition of the crime has similarities with the state of affect. V. I. Kuznetsov adheres to this position in his works, emphasizing that the mother commits a crime in a state of affective outburst^[1]. However, we disagree with this opinion for the reason that infanticide and murder in a state of passion (Article 107 of the Criminal Code of the Russian Federation) are separated, first of all, by law. First of all, it is worth remembering that affect is a state of severe mental shock caused directly by the actions of the victim, whereas a newborn child, due to his small physical abilities, has no other abilities than crying, which, accordingly, excludes affect.

In addition, the obvious fact is that mental pathologies often stimulate the commission of crimes, therefore, their careful study is one of the ways to prevent crime, which is part of the investigator's activity^[2][3].

For the investigator to successfully resolve a criminal case, it is necessary to establish a number of facts that require special knowledge from the fields of medical, psychiatric and psychological sciences, which implies an appeal to the possibilities of psychological and psychiatric forensic examinations. These facts include questions about whether the accused suffered from any disorders at the time of the act - an expert psychiatrist will answer this. However, the exclusion of the psychologist's special knowledge can lead to a poor-quality conclusion (due to the fact that anomalies can manifest themselves for a short time). Awareness of the nature of one's actions by a person is also given by a psychologist, followed by fixation of the mental state by a psychiatrist – it should be emphasized the unambiguously high role of clinical diagnosis in the problems studied. The issue of the need to apply compulsory medical measures is solved comprehensively by a psychiatrist, based on the data provided by a psychologist. If emotional tension is detected in the mother, the task of experts is to assess the severity of this condition and the possibility of its influence on the mother's behavior at the time of the commission of an illegal act.

Those of the mothers who commit murder, with the established absence of signs of a mental disorder, act purposefully and their motives in the vast majority of cases are reduced to social and domestic ones. It should be noted that such crimes are characterized by their concealment by the guilty person and other forms of counteraction to the investigator^[4][5][6] – this once again testifies to the awareness of the mother's actions and the ability to direct her actions. In view of the above, the absence of signs of a mental disorder at the time of the commission of this act will mean a retraining of the composition, since the presence of such signs is mandatory and fixed by the provisions of the article. The same consequences are caused by the onset of a mental disorder after the commission of the act: taking into account the sanity of the special subject at the time of the commission of the crime, which means awareness of the actions and, accordingly, the presence of intent, the act will be qualified as murder with the subsequent possibility of using compulsory medical measures.

Medical science has revealed that after childbirth, the release of the hormone oxytocin is more activated in women^[6], which is responsible for a sense of joy and tranquility, it is also responsible for the mother's sense of attachment to the newborn. Thus, a violation of the metabolism of this hormone entails a disturbed perception of the child by the mother, which once again emphasizes the importance of seeking the help of a forensic medical expert in investigating the composition of Article 106 of the Criminal Code of the Russian Federation.

In addition, a traumatic situation is a differentiating criterion and is understood as a situation that stimulates the growth of emotional tension and is caused by childbirth, and not by other social, family, household or material factors. However, a number of cases show that stressors that are completely unrelated to the process of childbirth and the painful state of the psyche lead to infanticide: unwillingness to raise a child, refusal to leave a child in a maternity hospital, material difficulties or fear of their occurrence and others, on the contrary, claiming intent in committing an act, awareness and thoughtfulness of actions. From which it follows that in practice the concept of a traumatic situation is interpreted in an unreasonably broad sense, being associated with the very fact of physiological childbirth.

Another problematic issue is the wording in Article 106 of the Criminal Code of the Russian Federation of the period when this crime may be committed: "during or immediately after childbirth." The Supreme Court of the Russian Federation has not provided explanations of what time frame covers the period "immediately after childbirth", but a study of judicial practice has shown that crimes qualified in accordance with Article 106 of the Criminal Code of the Russian Federation, in the vast majority of cases, are determined by the courts as committed in such conditions – immediately after childbirth. Among them, there are indeed those in which this moment should be understood literally: "after cutting the umbilical cord, she took her newborn child in her arms and placed him in a bucket of water upside down"^[7]. However, more often there is a practice where the removal of the moment of death of a newborn from the moment of birth is recorded for an hour: "the child was born alive, and his death occurred as a result of mechanical asphyxia within 1 hour after birth"^[8], and even for 6-7 hours^[9]. Thus, we can see that the courts have not independently developed generally accepted time limits for this concept. Moreover, there are no other appropriate legislative acts other than the Criminal Code of the Russian Federation that disclose this definition.

The definition of the commission of an act "at the time" of childbirth does not cause difficulties, however, the need is expressed to detail the concept of "immediately after childbirth" with the designation of specific time limits, which is required for a fair qualification of an illegal act. The initial moment is defined by Federal Law No. 323-FZ of November 21, 2011 "On the basics of protecting the health of citizens in the Russian Federation", where Part 1 of Article 53 states: the moment of birth of a child is the moment of separation of the fetus from the mother's body through childbirth^[10].

No less difficult is the question of the concept of newborn, which in practice entails the application of a privileged composition to cases of purposeful infliction of death. The newborn implies the designation of a specific age category for the child, which begins with the end of the process of biological childbirth and the separation of the child's fetus from the mother's body. The Criminal Code of the Russian Federation, as well as the acts of the Ministry of Health of the Russian Federation, clinical recommendations, do not indicate the final age limit of the newborn, which again leaves this issue to the independent discretion of the courts of general jurisdiction. The generally accepted duration of this period in pediatrics is up to 28 days (4 weeks), however, this opinion does not have a link to an official source. Consequently, other scientifically developed boundaries of the newborn have an equal right to exist and none of them can be accepted as the main one as long as there is no legislative consolidation of them.

The duration of the newborn period depends on the degree of maturity of the child^[11]: in premature infants, it lasts more than 28 days, which requires a forensic medical examination not only to establish the newborn of the child, but also its full term. The establishment of these circumstances must be taken into account in order to preserve the periodic framework that can affect the qualification of an act: if infanticide occurred after the expiration of a newborn, it should be qualified as the murder of a minor, which entails a change in the subject of evidence in a criminal case.

So, we consider it fundamentally important to develop a normative legal act officially regulating the differentiation of childhood periods.

Based on the above, we can state the following conclusions: the current regulation of infanticide contains a number of legislative gaps, which require the involvement of not only legislative authorities, but also the Ministry of Health of the Russian Federation. These gaps create a number of difficulties: for an investigator, this is a change in a number of circumstances to be proved in a criminal case; for a court, it makes it difficult to carry out a fair qualification of the corpus delicti; for an expert, it blurs the time frame, the establishment of which is necessary to give a reasoned conclusion.

In order to achieve the objectives of the investigation, as well as for the correct qualification of the mother's actions in the crime under consideration, it is extremely important to establish a traumatic situation and the degree of its severity, which cannot be accurately stated without careful analysis by forensic experts. In this case, the task of the examinations is a comprehensive study of the identity of the accused, and their purpose is to answer the question whether a psychotraumatic situation took place in a particular case. The resolution of these issues is critical for the investigation, both the complex of necessary investigative measures and the direction of the entire investigation depend on them.

In addition, it is necessary to detail the concept of a traumatic situation and the range of circumstances that cannot relate to it. In our opinion, it is necessary to add at the legislative level that this situation should have a causal relationship with past physiological childbirth, be their consequence, excluding the addition of everyday situations.

The age of the newborn also needs to be regulated, namely, up to what point it can be considered such. In the medical literature, it varies: 28, 29 and 30 days; whereas in obstetrics, a profession related to the birth of a child directly, a newborn child is considered to be born within the first week after its birth, in forensic medicine, the term of a newborn is only one day, in age psychology – 3-4 weeks. We consider it necessary to recognize a single newborn period, which is critical both for the activities of expert organizations and for the investigation.

An equivalent problem is the unsuccessful formulation of the period "immediately after childbirth", which, based on the studied practice, is determined arbitrarily – at the discretion of the judge when considering the case.

The lack of strict definitions and unity of concepts entails an excessively humane attitude towards the subject of the crime, taking into account the influence of external circumstances, which are only potential and disorient law enforcement officers. This problem of the application of privileged composition to persons guilty of committing an act can be resolved by introducing specifics into the disposition of Article 106 of the Criminal Code of the Russian Federation, or by clarifying the Plenum of the Supreme Court of the Russian Federation. Undoubtedly, when drawing up the disposition of this composition, the legislator sought to highlight the painful condition of the mother, but in practice this leads to an excessive humanization of the law, a decrease in control and responsibility for the committed act.

The investigation is a specific social activity regulated by law, aimed at establishing the true circumstances of the crime^[12], which is impossible without specific normative formulations.