Threat of murder or serious harm to health: problems of law enforcement and ways to overcome them

Shutova Yuliya Aleksandrovna ORCID: 0000-0003-1943-0820 Postgraduate student, Department of Criminal Law, St. Petersburg University of the Ministry of Internal Affairs of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 yulya.shiganvoa.96@mail.ru

The subject of the study.

An important place in ensuring the protection of mental and social health of a particular person is occupied by the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation (hereinafter the Criminal Code of the Russian Federation) - the threat of murder or serious harm to health. According to official statistics of the Main Information and Analytical Center of the Ministry of Internal Affairs of Russia (hereinafter GIAC MIA) in 2012, 81733 crimes under Article 119 of the Criminal Code of the Russian Federation were detected, in 2013 - 84295, in 2014 – 84401, in 2015 – 80801, in 2016 – 70258, in 2017 – 66744, in 2018 – 62468, in 2019 – 56563, in 2020 – 55223, in 2021 – 53275, in 2022 – 45070. Thus, about twenty percent of the total number of crimes against the person registered annually in the Russian Federation is accounted for by threats of murder or serious harm to health.

Despite such a prevalence of the crime under investigation, a number of problems arise in law enforcement practice, which significantly affect the quality of protection of citizens from threats of murder or serious harm to health. In this regard, the subject of this study will be: the criminal law norm contained in Article 119 of the Criminal Code of the Russian Federation; materials of judicial and investigative practice related to the implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation; works on the theory of criminal law, which investigated controversial issues of criminal law and criminological characteristics of the threat of murder or causing serious harm to health; the ruling of the Constitutional Court of the Russian Federation, statistical data and data from its own sociological research.

Research methods.

At the initial stage of information collection, the main methods were: the study of 170 materials of criminal cases and 200 convictions for threatening to kill or cause serious harm to health, which were in the production of investigators, interrogators and were considered in the courts of the constituent entities of the Russian Federation in the period from 2016 to 2023. Most of the materials of criminal cases were taken in the following subjects of the Russian Federation: the Republic of Bashkortostan, the Komi Republic, St. Petersburg, Murmansk Region, Vologda Region, Pskov Region, Yaroslavl Region, Kostroma Region, Kurgan Region, Khanty-Mansiysk Autonomous Okrug; a survey in the form of a questionnaire of 683 law enforcement officers conducted in the period from 2021 to 2023 in 8 administrative centers of the Federal Districts of the Russian Federation: St. Petersburg, Moscow, Nizhny Novgorod, Rostov-on-Don, Novosibirsk, Yekaterinburg, Pyatigorsk, Vladivostok (60 judges, 92 prosecutors, 192 investigators, 263 interrogators, 27 district police officers were interviewed, 20 juvenile inspectors, 29 operational duty officers).

At the subsequent stage of processing the information received, general scientific and private scientific methods of cognition were used: system-structural, reduction, deductive method, method of interpretation, formal legal method.

Conclusions.

At the present stage, law enforcement practice unreasonably narrows the scope of implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation, reducing it to the protection of public relations in the family and household sphere. Currently, death threats or serious harm to health are made using mass media, information and telecommunication networks, including the Internet.  However, law enforcement practice is not ready to respond in a timely and effective manner to designated threats of murder or serious harm to health, which negatively affects the protection of mental and social health of the individual.

Scientific novelty.

The threat of murder or serious harm to health does not encroach on life, but directly harms the victim's health, namely his mental and social components. The indicated position finds expression in the works of P. N. Levin ^{[1, p.9]}, G.N. Borzenkov ^{[2, p.119]}, V.I. Zubkov ^{[3, p.155]}. In addition, O. V. Ermakova believes that "the specific object of Chapter 16 of the Criminal Code of the Russian Federation is life and health, however, the threat itself does not affect life, but affects the health of the victim, namely his mental state" ^{[4, p. 171]}. M. D. Davitadze and G. A. Maistrenko, revealing the essence of the threat of murder or serious harm to health, as well as the object of criminal encroachment, indicate that "the threat of murder or serious harm to health is a mental impact aimed at the emotional state, psyche, health, personal values, rights and interests of the victim, with the aim of intimidation, causing a feeling of fright, fear, anxiety, insecurity and other uncomfortable and nervous state"^{[5, pp.138-141]}.

Despite the theoretical significance of the presented scientific works, currently in criminal law science there is no uniform understanding of the immediate object of the crime provided for in Article 119 of the Criminal Code of the Russian Federation, and there are also no unified concepts of "mental health" and "social health" of a particular person. These defects have a negative impact on law enforcement practice and effective protection of citizens from threats of murder or serious harm to health. In particular, some law enforcement officers believe that the threat of murder or causing serious harm to health is the stage of detecting intent to kill or cause serious harm to health, others that when committing a crime under Article 119 of the Criminal Code of the Russian Federation, it is necessary to have physical violence that harms human physical health. In order to clarify the essence and content of the direct object of the crime provided for in Article 119 of the Criminal Code of the Russian Federation, as well as the formulation of author's concepts, an appeal was made to scientific works in the field of psychology.

A number of scientists, such as O.N. Kuznetsov, V.I. Lebedev ^{[6, pp. 112-125]}, N.D. Lakosin, G.K. Ushakov ^{[7, p.58]} developed criteria for mental and social health of an individual. However, there is no regularity and systematicity in the indicated positions, which does not allow the use of these criteria in the formulation of unified concepts of "mental health" and "social health". G.S. Nikiforov presented the criteria of mental and social health in the most detailed and exhaustive way ^{[8, pp. 59-60]}. Based on these criteria, we believe that "mental health" should be understood as a set of mental processes, states, properties and relationships of a person characterized by mental comfort, adequate regulation of behavior, a system of internal attitudes, values and motives of behavior. "Social health" should be understood as an adequate connection of a person with other people, groups of people and society, as well as an interest in the world around them.

As part of their own sociological research, it was found that 60% of law enforcement officers indicated that the threat of murder or serious harm to health directly harms the mental and social health of a particular person. In this regard, we consider it justified to consider public relations under the direct object of a threat of murder or serious harm to health, ensuring the legitimate right of a particular person to mental and social health.

In modern conditions, the threat of murder or serious harm to health can be committed using mass media, information and telecommunication networks, including the Internet. However, law enforcement practice is not ready to respond effectively in a timely manner to new ways of reporting threats of murder or serious harm to health, and therefore, as part of a preliminary check of a crime report, a decision is made to refuse to initiate criminal proceedings due to the absence of signs of a crime. Law enforcement officials motivate the designated decision by the indirect nature of the threat of murder or serious harm to health. This situation in modern realities is a "relic of the past", since the information impact, in the form of mental violence transmitted on the Internet, also affects the mental and social health of a particular person.

According to the results of the survey of respondents, it was found that in 56% of cases, law enforcement officers in practice faced threats of murder or serious harm to health, which were committed using mass media, information and telecommunications networks, including the Internet. In this regard, there is currently a need to adapt law enforcement practice to modern ways of expressing threats of murder or serious harm to health, in order to adequately confront new challenges and crimes committed using mass media, information and telecommunications networks, including the Internet.

In order to ensure a uniform understanding of the signs characterizing the objective side of the crime provided for in Article 119 of the Criminal Code of the Russian Federation, and to eliminate contradictions arising from the qualification of a threat to kill or cause serious harm to health committed using mass media, information and telecommunications networks, including the Internet, a classification of a threat to kill or cause serious harm to health according to the quantitative criterion:

1. A simple form is the commission of one action against the victim by direct (physical, verbal, conclusive) or indirect expression of a threat to kill or cause serious harm to health;

2. A complex form is the commission of several repetitive actions (including using mass media, information and telecommunication networks, including the Internet) in relation to one victim or the commission of one action in relation to several victims.

The disposition of Part 1 of Article 119 of the Criminal Code of the Russian Federation, in addition to a socially dangerous act expressed in a threat to kill or cause serious harm to health, contains another important sign – grounds to fear the threat. Currently, law enforcement practice has reduced the understanding of this feature to the availability of funds or the use of instruments for committing a crime, or to accompanying a socially dangerous act with physical violence. This narrows the scope of implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation.

Based on the theoretical provisions of the science of criminal law and judicial investigative practice, in order to eliminate contradictions regarding a uniform understanding of the grounds for fearing the threat of murder or serious harm to health, we propose that they be understood as a set of objective pre-criminal circumstances (for example, the continued nature of threats, the commission of a violent crime against the victim or another person, a conflict situation, the commission by a person of previously violent crimes against a person, including crimes under Article 119 of the Criminal Code of the Russian Federation and others) and criminogenic conditions (for example, confined space, close proximity, absence of witnesses and eyewitnesses to the commission of a death threat, deprivation of the possibility of free movement, association with physical or mental violence, alcoholic intoxication of the guilty person, aggressive the attitude of the guilty person, the physical superiority of the guilty person, the use of instruments of committing a crime, and others), indicating the validity of the expressed threat of murder or serious harm to health.

The absence, as a mandatory feature of the subjective side of the crime, of the purpose of making a threat to kill or cause serious harm to health leads to errors in law enforcement practice. In particular, within the framework of the Ruling of the Constitutional Court of the Russian Federation dated 03/23/2010 No. 368-O-O "On refusal to accept for consideration the complaint of citizen Vasily Viktorovich Kalugin for violation of his constitutional rights by Part one of Article 119 and Part one of Article 286 of the Criminal Code of the Russian Federation", a criminal case was considered, initiated on the grounds of a crime provided for by Part 1 of Article 119 of the Criminal Code of the Russian Federation, instead of establishing signs of a circumstance excluding the criminality of an act provided for in Article 38 of the Criminal Code of the Russian Federation. In this regard, the Constitutional Court of the Russian Federation pointed out the need to establish the purpose of making a threat to kill or cause serious harm to health, as part of the investigation of a crime under Article 119 of the Criminal Code of the Russian Federation.

The survey of law enforcement officers showed that most often the threat of murder or serious harm to health is committed in order to: cause fright in the victim (28%); cause a feeling of fear for their life or health (26%); suppress the will of the victim (23%); change the behavior of the victim (17%); cause a feeling of anxiety and anxiety (6%).

In our opinion, intimidation of the victim, suppression of his will, psychological influence, infliction of moral and mental suffering rather relate to the goal-a means directly related to criminal motivation and determination of the threat of murder or serious harm to the victim's health. And the goal-result in this crime should be recognized as the feeling of anxiety, anxiety and fear of the victim for his life and health.

It seems that for a uniform understanding by citizens and proper law enforcement of the purpose of making a threat to kill or cause serious harm to health, it should be formulated in a generalized version. We believe that the crime provided for in Article 119 of the Criminal Code of the Russian Federation is committed with the aim of intimidating the victim. At the same time, by "intimidation" we propose to understand the formation of the victim's feelings of anxiety, anxiety and fear for his life and health, as well as the suppression of the victim's will to change his behavior in the interests of the threatening one.

In addition to the law enforcement contradictions that arise during the implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation, there are a number of problems in individualizing the criminal law impact on a person who has made a threat to kill or cause serious harm to health. In particular, they arise due to the lack of criminological justification for the use of circumstances mitigating and aggravating punishment.

During the study of judicial and investigative practice, it was revealed that in 58% of cases of making death threats, minors turned out to be either witnesses or victims of this crime. In addition, according to statistics from the Judicial Department at the Supreme Court of the Russian Federation, every 5 crimes from Chapter 16 of the Criminal Code of the Russian Federation "Crimes against life and health" committed against a minor falls precisely on the threat of murder or serious harm to the health of a minor who witnessed an intentional violent crime or experienced criminal influence, subsequently psychological trauma may develop. As a result, a minor may become involved in the negative social phenomenon of bullying in the adolescent environment as a victim or as an aggressor.

In the science of criminal law, the issue of including in the list of circumstances aggravating punishment, the commission of a crime in the presence or in relation to a minor is currently being discussed. F. K. Zinnurov notes that "The psyche of a child is not formed, unlike the psyche of an adult, therefore it is vulnerable to negative environmental conditions that can cause deviations in behavior" ^{[9, p.13]}. A.V. Serebrennikova focuses on the negative consequences of domestic violence for minors. In particular, the author points out "the presence or commission of a violent crime against a minor forms the victim's condition in the latter. In this state, a minor cannot adequately perceive reality" ^{[10, p.163]}. V.E. Batyukova also draws attention to the fact that one of the subjective factors contributing to domestic violence can be "an aggressive behavior model learned in childhood (if a person uses violence, then it is likely that in childhood he or she he was a victim of violence himself or systematically observed it in the family) ^{[11, p.73]}. O. V. Artyushina points out that "Not all crimes can have a negative impact on the psyche of a minor, and therefore criminal liability should be strengthened in cases of the presence or commission of an intentional violent crime against a minor" ^{[12, p. 49]}.

We consider it justified, as an aggravating circumstance, when making a threat to kill or cause serious harm to health, to take into account the presence of a minor or the commission of a crime against him under Article 119 of the Criminal Code of the Russian Federation. In this regard, it is necessary to supplement Part 1.1 of Article 63 of the Criminal Code of the Russian Federation with the following content "as well as the commission of an intentional violent crime in the presence or in relation to a minor."

As part of the study of the materials of criminal cases on the threat of murder or causing serious harm to health, it was found that often the victim behavior of the victim acts as a situation-cause, which was the determinant of the commission of a crime under Article 119 of the Criminal Code of the Russian Federation, which can be characterized as provocative. However, this circumstance is not taken into account by the courts when individualizing the criminal legal impact on a person who has made a threat to kill or cause serious harm to health.

In some cases, the victim's provoking victim behavior of a threat to kill or cause serious harm to health may be expressed in immoral or illegal behavior of the victim. During the survey of law enforcement officers, a question was raised regarding the definition of the content of immoral or illegal behavior of the victim. Thus, law enforcement officers pointed to the following types and forms of behavior of the victim: bullying 25.6%; violence 24.3%; insults 23.1%; antisocial behavior 19.1%; making claims against the perpetrator 5.3%; lack of tact 2.6%. Thus, we consider it advisable to take into account the victim's provoking victim behavior, in some cases expressed in immoral or illegal behavior, as a circumstance mitigating punishment for making a threat to kill or cause serious harm to health.

Summing up this article, it should be noted that the author identified a number of law enforcement problems that arise both in the implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation, and in the individualization of criminal legal impact on a person who has made a threat to kill or cause serious harm to health. On the basis of dogmatic analysis, own sociological research, materials of judicial and investigative practice, statistical data, proposals were developed to improve law enforcement practice aimed at increasing the protection of citizens from the threat of murder or serious harm to health.In particular:

1. In order to improve law enforcement practice in the implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation, in order to effectively protect citizens from threats of murder or serious harm to health, the author formulated the unified concepts of "mental health" and "social health".

2. For the purpose of a uniform understanding of the signs characterizing the objective side of the crime provided for in Article 119 of the Criminal Code of the Russian Federation, a classification of the threat of murder or serious harm to health according to a quantitative criterion has been developed and the concept of "grounds to fear the threat" is given.

3. In order for citizens to understand uniformly and correctly enforce the purpose of making a threat to kill or cause serious harm to health, the concept of "intimidation" is formulated as the goal-result of committing a crime under Article 119 of the Criminal Code of the Russian Federation.

4. In order to apply effective and fair criminal legal influence on a person who has made a threat to kill or cause serious harm to health, the author gives recommendations on taking into account circumstances aggravating and mitigating punishment for committing a crime under Article 119 of the Criminal Code of the Russian Federation.

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