Criminal liability for murder committed in a state of passion

     The practice of applying criminal legislation in cases of crimes criminalizing murder committed in a state of passion is provided for in Article 101 of the Criminal Code of the Republic of Kazakhstan.

The term "affect" was first established in the Criminal Code of the Republic of Kazakhstan dated 16.07.1997, which entered into force on 01.01.1998. The legislation in force earlier considered a state of intense mental agitation as a circumstance mitigating responsibility, and a state of sudden intense mental agitation as a sign committed in a state of passion, attributed by the legislator to murders with a privileged composition. A mitigating circumstance is a state of intense mental agitation - a physiological affect. This murder is a response of the perpetrator to the unlawful or immoral behavior of the victim. It is the fact of the victim's unlawful actions that acts as an "excusable" circumstance that reduces the degree of public danger of the crime under consideration. the "privileged" composition of the murder. Murder,

Affect is understood as a special mental state in the form of an emotional "explosion", that is, rapidly occurring mental processes in which the person's ability to be aware of his actions and direct them is preserved, but significantly hindered. It doesn't matter who the violence is applied to - the perpetrator himself or those close to him. Characteristic signs of affect are the suddenness of occurrence and the short duration of the course.

Affect (from the Latin word affectic - emotional:arousal) is a short-term and violent emotional process that has a significant impact on human consciousness and activity. With affect, the human psyche under the influence of emotions comes out of a calm state, excitement restrains conscious, intellectual activity, impedes self-control, reduces a person's ability to be aware of their actions, as well as to direct them.

Physiological affect is an extraordinary reaction for a person to exceptional circumstances. In this state, a person loses his head and can commit actions that he would never have done in a normal state. However, the state of affect does not exclude self-control, conscious behavior, the ability to direct one's actions and restrain oneself. Persons who commit murder in a state of physiological passion are recognized as sane and are responsible for what they have done.

The so-called pathological affect differs from the physiological affect, which is a temporary mental disorder. With pathological affect, there is a complete blackout of consciousness and a person loses the ability to realize the actual nature and social danger of their actions and to direct them. In such cases, a person is declared insane, which excludes criminal liability.

To decide whether an act was committed in a state of physiological or pathological affect, a comprehensive psychological and psychiatric examination is prescribed.

To apply Article 101 of the Criminal Code of the Republic of Kazakhstan, it is necessary to establish: 1) the victim's commission of illegal or immoral actions or the creation of a prolonged traumatic situation; 2) the actual presence of the perpetrator in a state of sudden intense mental agitation; 3) the causal relationship between the unlawful actions of the victim and the occurrence of a state of affect in the perpetrator.

The objective side of this crime is characterized by the actions of the perpetrator, who is in a state of passion, resulting in the death of the victim. According to the construction of the objective side, the corpus delicti is material.

The crime is over from the moment of the victim's death. An obligatory sign of the objective side of this crime is the time and environment in which the crime was committed.

Given the position that a physiological affect occurs, as a rule, suddenly and lasts for a short time, the actions of the perpetrator should last as long as the state of affect persists. If the actions of the perpetrator go beyond the time frame of passion, then murder cannot be qualified under art.101 of the Criminal Code of the Republic of Kazakhstan.

101 of the Criminal Code of the Republic of Kazakhstan, the context of the commission of the crime is crucial for the existence of the corpus delicti provided for in Article 101 of the Criminal Code. The state of passion should not be caused by any, but only by the reasons directly specified in the law.

a) violence on the part of the victim (both physical violence - beatings, torture, harm to health, and mental violence - the threat of physical violence);

b) bullying on the part of the victim (violent or abusive acts, characterized by duration and special cynicism);

c) a grave insult on the part of the victim (gross humiliation of the honor and dignity of a person, expressed in an indecent manner);

d) other illegal or immoral actions (inaction) of the victim (for example, arbitrariness, slander, deception, adultery, etc.);

e) a long-term traumatic situation that has arisen in connection with the systematic illegal or immoral behavior of the victim (for example, constant scandals, brawls, fights, insults in the family due to the drunkenness of one of the spouses, overwhelming the patience of other household members).

The subjective side of a murder committed in a state of passion is characterized by intentional guilt in the form of direct or indirect intent. Here there is an affected intent to kill, which arises suddenly in response to the unlawful (immoral) behavior of the victim and, as a rule, is immediately realized. On the contrary, a significant period of time between the actions of the victim, which caused great emotional agitation of the perpetrator, and the formation and realization of criminal intent by the perpetrator indicates a premeditated intent to murder. 101 of the Criminal Code of the Republic of Kazakhstan does not apply in these cases. A slight time gap between the actions of the victim that provoked the murder and the murder itself does not exclude the possibility of qualifying the deed under art.101 of the Criminal Code of the Republic of Kazakhstan. Emotions are an obligatory element of the subjective side of the crime under consideration. It is a strong emotional excitement that causes the appearance of intent to kill. Intent arises and is realized while the perpetrator was in a state of passion.

The subject of a crime is any sane individual who has reached the age of sixteen at the time of the commission of the crime.

101 of the Criminal Code of the Republic of Kazakhstan establishes responsibility for the qualified type of this crime - the murder of two or more persons committed in a state of passion. This part of the article applies in cases where the murders were committed in a state of physiological passion caused by the unlawful or immoral behavior of each of the victims.

By the verdict of the Merken district court of the Zhambyl region on April 02, 2015, Pilikina O.V. was sentenced under art. 101h.1 of the Criminal Code of the Republic of Kazakhstan to 1 year of restriction of freedom with the establishment of probation control for a period of 1 year. From the introductory part of the sentence: Kan F.K., in a state of alcoholic intoxication, came home, disturbing the peace of family members, using obscene language, not paying attention to the young child in the arms of Pilikina's wife O.V., began beating her with his hands and a metal shovel on her head and other parts of her body. Then, threatening his wife and young children, he began to swing a knife at his wife. Pilikina O.V. defending herself, covering the child with her body, put her hand under the knife. Having received a cut wound from this, out of desperation and hopelessness, she put the child on a chair, grabbed the attacker by the belt, and pushed him into the corridor. However, Kan F.K. continued to stab Pilikina O.V. Feeling a real threat, fear for her life contributed to rapid emotional stress, Pilikina O.V. snatching the knife from Kan F.K.'s hands. Due to her motor automatism, in a state of sudden intense mental agitation, Kan F.K. inflicted multiple bodily injuries with a knife.. As a result of his injuries, Kang F.K. died.

For the correct qualification of the actions of the convict, O.V. Pilikina, a comprehensive forensic psychological and psychiatric examination served, which showed that the convict at the time of the incident was in a state of pronounced emotional tension in terms of the depth of physiological affect, cumulative genesis.

The courts also need to strictly comply with the requirements of the law regarding the recognition of close relatives of the deceased as victims in the case, and not representatives of the victim.

In cases where a non-custodial sentence is imposed, courts must strictly comply with the requirements of the law, namely, in the operative part of the sentence, indicate the obligation of convicted persons to appear within ten days after the sentence enters into force at the authorized body at the place of residence for registration, as well as the consequences of failure to perform the duties assigned by the court.

  

  

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