Mental or physical coercion in Article 40 of the Criminal Code of the Russian Federation

Commentary on Article 40 of the Criminal Code of the Russian Federation

Physical or mental coercion is identified by the legislator as an independent circumstance that excludes the criminality of the act.
Physical coercion is the influence of external forces on a person’s will in order to force him to commit a socially dangerous act. Such influence can be carried out through beatings, torture, causing bodily harm and other methods that cause physical pain and (or) harm to the human body.

In accordance with Part 1 of Art. 40 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to interests protected by criminal law as a result of physical coercion, if, as a result of such coercion, the person could not control his actions (inaction).

The inability to control one's actions can arise in situations where the force of influence on a person is irresistible.

According to the provisions of the law, an act is recognized as a crime if it occurs under the control of the will. The absence of a volitional nature of the acts performed by a person excludes his criminal liability. Causing harm to legally protected interests under duress means committing a socially dangerous act against the will of a person under the influence of external factors that threaten the benefits that are significant to him (life and health). If a person cannot control his actions, he is not responsible for the damage caused in the criminal law aspect.

It seems that in this kind of cases we should talk about the absence of the subjective side of the crime, since the will of the person to cause harm is absent, his behavior is not volitional and, therefore, cannot be regarded as criminal due to the absence of corpus delicti, and not by virtue of Art. 40 of the Criminal Code of the Russian Federation, although in such cases there is both the absence of a crime and the presence of physical coercion. It should be noted that in practice the prevailing tendency is to dismiss criminal cases involving physical coercion due to the absence of corpus delicti.

If physical coercion does not lead to a state in which a person cannot control his actions, then criminal liability is excluded only in the presence of a state of extreme necessity and subject to the conditions of its legality. In all other cases, a person is subject to criminal liability due to the presence of volitional behavior and the absence of circumstances excluding the criminality of the act.

The issue of responsibility is resolved in a similar way in the presence of mental coercion, which is an influence on the human psyche with the aim of suppressing his will. Mental coercion is realized in various kinds of threats of harm both to the person to whom it is applied and to other persons, as well as to society or the state. Deception, bribery, persuasion and other similar means of influence are not recognized as mental coercion. It is possible to directly influence the psyche of a person using psychotropic substances, hypnosis and other methods. With mental coercion, the will of a person is not suppressed to such an extent that he is deprived of the opportunity to realize his actions and direct them. This means that acts committed under the influence of such coercion are criminally punishable (Part 2 of Article 40 of the Criminal Code of the Russian Federation). Otherwise, there is no corpus delicti for the reasons stated above.

The issue of criminal liability for causing harm to interests protected by criminal law as a result of mental coercion, as well as as a result of physical coercion, as a result of which the person retained the ability to direct his actions, is resolved taking into account the provisions of Art. 39 of the Criminal Code of the Russian Federation - an extreme necessity.

Both physical and mental coercion are considered as circumstances mitigating punishment (clause “e” of Part 1 of Article 61 of the Criminal Code of the Russian Federation), unless they are recognized as circumstances that exclude the criminality of the act or do not create a state of extreme necessity.

On forms of non-physical (psychological) violence in the criminal legislation of Russia 272

Violent crimes are among the most dangerous among other forms of illegal activity, primarily due to the encroachment on such important and often irreplaceable objects as life or health. And although the number of such crimes is not at the top of the crime structure, the consequences of their commission are very significant.

The problems of preventing violent crime still remain relevant, despite the many measures taken both in Russia and foreign countries. According to official statistics, in 2021, 2,058,476 crimes were registered in the Russian Federation. The categories “violence” or “violent crime”, of course, are not included in the structure of crime, but information relevant to this study can be gleaned from data on other crimes. The share of crimes against the person was about 14%, of which in January-December 2021, 9,738 murders and attempted murders were committed, as well as 24,552 episodes of intentional infliction of grievous bodily harm. As a positive point, it should be noted that compared to the previous year, there is a tendency to reduce the number of violent crimes [10]. At the same time, we note that this does not always indicate a reduction in the real number of violence in society. It is enough to point out the partial decriminalization of beatings, the statistical consequence of which should be considered an increase in the number of administrative offenses provided for in Art. 6.1.1. Code of Administrative Offenses of the Russian Federation. In the absence of partial decriminalization, this number would appear in criminal statistics.

The problem of countering violence in foreign countries is quite acute. In the United States, for example, according to research by individual authors, attacks with firearms that result in harm to the life or health of several victims occur on average every day. In addition, from 2012 to 2021 there are more than 1,500 such cases [26, p. 541-542]. In Canada, despite a decline in the overall level of domestic violence, the number of victims remains fairly stable. In 2021, their number was 239 for every 100,000 population [16, p. 34-37].

Thus, we can note a general positive trend towards a reduction in the number of violent crimes, while their value remains high.

Despite the abundance of various scientific works related to the study of types of violence, in the theory of criminal law this phenomenon is divided mainly into two categories.

The first category includes physical violence, which is traditionally characterized by a greater degree of research. Its forms of manifestation and consequences of implementation are more obvious, so such close attention of science is understandable.

The second category has been studied to a much lesser extent. It is worth paying attention to the fact that even its name is controversial. Most legal authors talk about “mental violence,” others reasonably call this phenomenon “psychological violence.” A relatively rare term such as “emotional violence” is also found in foreign and domestic literature.

In one of our earlier studies of the problems of countering violence, in our opinion, we were able to convincingly prove the need to use a new construct that covers all forms of violence that are not physical [6, p. 103-104]. In this regard, in this work, the verbal construction “non-physical violence” will be used in the future, since this allows us to cover a wider range of issues.

Despite the fact that in theory and practice, physical violence is quite reasonably recognized as a more dangerous manifestation, non-physical violence should also not be ignored, since the consequences of the above attacks can sometimes be comparable. Human health does not consist of autonomous, but of interconnected components that influence each other. Damage to mental health can affect physiology, and vice versa.

In addition, the development of methods of encroachment does not stop at present. Methods of immersion in a hypnotic state, previously available to a limited circle of people, are now spreading to a greater extent, which is associated with the development of the information society. One of the well-known scientific achievements is the implantation of false memories into the brains of mice, allowing them to change their attitude towards certain phenomena [22, p. 494-495]. The use of such methods in relation to a person can lead to both positive and negative consequences, especially if they are used by representatives of crime.

The problem that this study is devoted to is the incompletely correct reflection of forms of non-physical violence in criminal law. Accordingly, the purpose of the work was to study the problems of reflecting forms of non-physical violence in criminal legislation, aimed at developing recommendations for improving criminal law norms in the direction of increasing their effectiveness.

In the scientific literature, the problem of enshrining types of non-physical violence in legal norms has not received a clear solution, although its analysis has been carried out repeatedly. A number of authors point out that violence is reflected in criminal legislation only as a method of committing a crime [9, p. 164-167]. Others consider “non-physical violence” a more meaningful category [8, p. 59-60].

Quite a lot of works are devoted not to violence in general, but only to its individual types. For example, phenomena such as threat have been analyzed in sufficient detail [12, p. 525-526; 3, p. 14-18], coercion [5, p. 61-63], cruel treatment [7, p. 142-143], hypnosis [11, p. 210-211] and others.

Among foreign authors, a significant number of studies have recently been devoted to non-physical violence in cyberspace [23, p. 27; 24, p. 136; 25]. In particular, the authors focus on legal measures to combat cyberbullying - bullying and humiliation that is committed via the Internet [17, p. 1-7]. At the same time, some scientists propose to apply the current legislation, while others insist on fundamentally new solutions [21]. The legal problems of creating and distributing pornographic images of people for the purpose of causing them mental suffering are touched upon [20, p. 397]. Of great interest is also the work devoted to the study of cyberstalking, i.e. the pursuit of one person by another via the Internet. The authors note that the legislation does not reflect the attitude of people towards this phenomenon, who often perceive it as a threat [18, p. 83-84].

The current domestic criminal legislation in the articles of the Special Part contains prohibitions on the implementation of several different manifestations of non-physical violence. An analysis of the provisions of the Special Part of the Criminal Code of the Russian Federation made it possible to determine the frequency of occurrence of one or another manifestation of non-physical violence with the reflection of the obtained data in Table. 1 and diagram (Fig. 1).

Table 1

Forms of non-physical violence in the articles of the Special Part of the Criminal Code of the Russian Federation

Rice. 1.

Correlation of forms of non-physical violence in the articles of the Special Part of the Criminal Code of the Russian Federation

Analysis of dispositions shows that in most cases a threat is provided as constructive or qualifying characteristics. At the same time, the content of the threat is quite differentiated. Most often, the Criminal Code of the Russian Federation prohibits the threat of violence, for example, in Articles 119, 126, 131 of the Criminal Code of the Russian Federation and others. This is quite logical, since this form of violence is implemented quite simply for the perpetrator and, in fact, can potentially support a host of crimes.

Close in meaning is the content of a threat to destroy or damage property. Objectively, this form is characterized by a lower degree of public danger, and therefore this sign is found only in some crimes provided for, for example, by Articles 142, 163 of the Criminal Code of the Russian Federation and others.

Even less common in criminal law is the threat of disseminating any information (Articles 163, 179 of the Criminal Code of the Russian Federation). At the same time, it should be noted that if the specified information is false and may negatively affect the honor, dignity or reputation of another person, then its dissemination in itself is already an unlawful act under Art. 128.1 of the Criminal Code of the Russian Federation. The presence of such a crime explains the rather rare use of the threat of dissemination of information as constructive or qualifying characteristics.

In addition, in a number of dispositions the word “threat” is used without specifying the content. This allows us to conclude that in such cases, criminal law prohibits threatening anything, including violence, destruction or damage to other people’s property, dissemination of information, etc. As an example, we can cite the elements of crime provided for in Articles 150 and 151.2 of the Criminal Code of the Russian Federation.

Based on the above, we consider it possible to agree with the opinion of E.N. Barkhatova that the content of the threat is the impact on the mental activity of the victim by informing him of information about the commission of actions that are undesirable for him or those close to him [1, p. 23].

The next most common form enshrined in criminal law is “coercion,” which is found in fourteen articles. Coercion and threat have coinciding characteristics, which in some cases is confirmed by acts of the Supreme Court of the Russian Federation. Thus, in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 26, 2007 No. 14 “On the practice of courts considering criminal cases of violation of copyright, related, inventive and patent rights, as well as illegal use of a trademark” it is clarified that violation of inventive or patent rights by forcing co-authorship may involve exerting influence in any way (including through violence, threats of adverse consequences for the victim).

In this regard, some scientists argue that threat is the only possible manifestation of mental (non-physical) violence. In our opinion, coercion and threat are still correlated as a whole and a part, i.e. coercion includes a threat or other actions, while threats can be made with violence or other undesirable actions, but not with coercion.

In addition, we note that determining the essence of this form of non-physical violence is more difficult than it seems at first glance, since, as S.V. correctly points out. Shevelev, the legislator puts various meanings into the term “coercion,” including by attributing this phenomenon to independent elements of a crime, methods of committing them, or to circumstances excluding the criminality of the act [13, p. 171-172].

The next form of non-physical violence enshrined in the Criminal Code of the Russian Federation is blackmail, which has much in common with both the threat and coercion discussed above. In the absence of a legal definition of this form, in the theory of domestic and foreign criminal law, in general, general features of the content of this phenomenon are distinguished. For example, Yu.A. Nikitin emphasizes that blackmail is a method of committing a crime in which a threat is made to disseminate information specified in the law about the victim or his relatives [4, p. 63-64].

A similar opinion is expressed in foreign literature. In particular, the authors understand blackmail as an illegal demand for payment or provision of services under the threat of disseminating information [15].

The next most common manifestation of violence is bullying, which acts as a qualifying feature of certain crimes against health, justice, and military service. Bullying can be carried out both in physical form (spitting, slapping, etc.) and in non-physical form (intimidation, humiliation). It should be noted that, like previous manifestations, bullying can be expressed in the form of threats. In any case, bullying is characterized by rudeness and cynicism, and its use indicates that the subject wants, among other things, to inflict moral suffering on the victim.

Despite the fact that the crime provided for in Art. 130 of the Criminal Code of the Russian Federation was decriminalized; special offenses are still provided for by criminal law. Currently, insulting participants in court proceedings, government officials and military personnel is punishable. At the same time, the legislator identifies insult, but in relation to the subject of the crime, as the causes of passion, in particular in Articles 107 and 113 of the Criminal Code of the Russian Federation.

This manifestation of violence can also be physical, as well as non-physical. Unlike previous forms, an insult in the form of a threat is unlikely, although the threat may consist, among other things, of insults.

Other forms of expression of non-physical violence in criminal law include cruel treatment, humiliation and infliction of mental suffering.

The theory of criminal law ambiguously resolves the issue of classifying deception and slander as manifestations of violence. Slander, of course, refers to methods of psychological influence, although its violent signs are not always obvious. Indeed, this unlawful act is rarely associated with a direct impact on the psyche of the victim. The subject of the crime first of all seeks to change the assessment of the victim’s personality on the part of other persons by providing them with false information.

However, we believe it is possible to agree with the position of M.S. Fokina and V.E. Dvortsov regarding the fact that repeated dissemination of slander as a component of bullying the victim can be attributed to non-physical violence, expressed in the form of systematic humiliation of honor and dignity [2, p. 270-271].

As for deception, this phenomenon, it seems, is not identical to violence, since it is not the deception itself that causes moral suffering to the victim, but, for example, damage from the loss of property during fraud. In the event that a deliberately false denunciation, deliberately false testimony, an expert or specialist opinion, or an incorrect translation are committed, it becomes not entirely clear who is being violated? Over the investigator, interrogator or court? It seems that the answer will be negative, while such crimes, of course, are not committed without deception.

Despite the fairly differentiated range of forms of manifestation of non-physical violence enshrined in criminal legislation, it seems that it remains incomplete.

For example, significant difficulties in qualifying and assessing public danger were caused by crimes committed using hypnosis or in a state of trance. Quite a lot of attention has been and is being given to hypnosis in the scientific literature, but, according to scientists, this phenomenon still remains insufficiently studied. There are also statements that hypnosis does not exist at all, despite a lot of evidence to the contrary cited in the literature [19, p. 510].

As for criminal law relations, there are many established facts of the use of hypnosis for criminal purposes. Currently, such cases also occur, although, compared to other methods of committing illegal acts, they are relatively rare.

For example, as follows from the verdict of the Leninsky District Court of Ufa dated May 10, 2017 in case No. 1-18/2017, F.D.Kh. was found guilty of creating a non-profit organization “Horde”, encroaching on the personality and rights of citizens (Article 239 of the Criminal Code of the Russian Federation). F.D.H. forced victims to participate in events of a religious association by putting them into a trance. As confirmed, including by the conclusion of a clinical-psychopathological study, the rituals presented in video and audio recordings contain signs of psychological influence in the form of suggestion and the use of psychotechnologies to manipulate people’s consciousness. These methods of psychological influence can have a negative impact on human health, provoke a maladaptive state, even a mental disorder[1].

Hypnosis is most often used for attacks on property relations, as well as life and health. At the same time, it is not entirely clear what type of violence it should be classified as, and whether this phenomenon is violence in principle or simply a method of influence?

Since in the theory of criminal law, in the context of interpreting the content of Article 40 of the Criminal Code of the Russian Federation, it is traditionally believed that physical coercion includes cases of forced use of medications, it seems that induction into a trance state with the help of various substances (for example, sodium teopental) should also be attributed to physical influences. In all other cases, hypnosis seems to be attributed only to non-physical influences.

As for determining belonging to manifestations of violence, I think this is possible, albeit taking into account specific actions when inducing a state of trance. If, with the help of hypnosis, a person is forced to take actions that are contrary to his will, and the nature of which he is aware of (for example, harming himself or others, giving away property), then all the signs of violence are present.

Otherwise, with the help of hypnosis, a person’s perception is changed, after which some phenomena are perceived differently. So, for example, in a state of trance and after appropriate suggestion, a person can perceive the sheets of paper handed over to him as real banknotes in circulation. In such a situation there is a significant resemblance to deception, which, as we indicated above, is not identical to violence.

A study of forensic investigative practice, it should be noted, shows that basically property crimes using hypnosis are classified as fraud. Therefore, hypnosis is equivalent to deception. Of course, it is easier to prove the fact of misrepresentation than the impact on the psyche, which affects the result of qualification, however, law enforcement indicators should not be ignored.

If the use of hypnosis in crimes against property were recognized as violence, then what was done in practice would be classified as robbery or robbery, depending on the possible consequences for health. Moreover, forced hypnosis should not be ruled out, because when put into a trance, property can be confiscated not by misleading, but by direct commands to transfer the thing and, for example, by inducing amnesia. Individual scientific research speaks in favor of the possibility of such a development of events [14, p. 790-791], as well as foreign legislation [1, p. 52-58].

Thus, in our opinion, hypnosis can act both as an act of violence (physical and non-physical) and as a non-violent psychological influence. Considering the fact that a number of thefts, crimes against life and health, and even against public morality can be committed using hypnosis, it seems possible to introduce this feature into the relevant articles of the Special Part of the Criminal Code of the Russian Federation. Based on the fact that this form of influence increases the social danger of the crime, the sign should characterize qualified crimes. Fixing the sign associated with the use of hypnosis will resolve a number of existing qualification problems, for example, those arising regarding the distinction between robbery and fraud.

Thus, the study allowed us to draw the following conclusions.

1. Deception is not a type of violence, since in itself it does not cause moral suffering to the victim. This position is reflected in criminal law, since acts that include deception are not considered violent (for example, fraud or deliberately false denunciation). At the same time, deception is certainly a form of psychological influence.

2. Criminal legislation does not contain all forms of socially dangerous non-physical violence, including hypnotic violence. It seems necessary to consolidate the use of hypnosis as a qualifying feature in some crimes. The addition of such a feature is possible, for example, in the compositions provided for in the following articles: 110, 110.1, 111, 112, 115,120, 131, 132, 150, 151, 151.2, 159, 161 of the Criminal Code of the Russian Federation, etc.

Improving the law in the above way will allow us to resolve a number of qualification problems, for example, those arising regarding the distinction between robbery and fraud. In addition, taking into account the use of hypnosis will contribute to the correct individualization and differentiation of punishments.

[1] From the materials of the criminal case No. 1-18/2017 on charges of F.D.Kh. in committing a crime under Part 3 of Art. 293 of the Criminal Code of the Russian Federation // Leninsky District Court of Ufa.

Subjective signs

The second group of elements is considered to be a set of characteristics: the personality characteristics of the criminal, his goals, motives, the nature of the guilt - all this will determine whether it is permissible to bring a particular person to justice or not.

The subject of the act in question is only a citizen, not an organization, who has reached the age of sixteen and is recognized as fully sane.

Regarding the subjective side, the procedure for establishing it is much more complicated.

This element reflects a person’s mental and psychological attitude to what he does, the danger his actions pose, and the final negative result. This perception of the situation is called guilt.

This attribute has two forms of existence, which also affects qualifications and measures of responsibility:

• Intent. It presupposes a person’s full awareness of his actions, an assessment of the negative consequences and the desire for their occurrence. That is, a person strives for a criminal result and does everything to achieve it. Intention can be direct or indirect, the difference is only in relation to the outcome of the offense, which may have a slight impact on the punishment.
• Carelessness. It also presupposes that the guilty person is fully aware of his actions. However, attitudes towards the consequences are changing. If the act of negligence occurs in the form of negligence, then the person did not foresee the negative result, but should have done so due to the circumstances. If in the form of frivolity, then the criminal knows what will happen after he commits the act, but without sufficient grounds for this he believes that the consequences will not occur.

Speaking about the crime associated with coercion to give false testimony and refusal of it, only direct intent is at work here.

Also, judicial practice in the Resolutions of the Plenum reflects the need to determine the goals of the criminal

It is important to establish the fact that the guilty person sought to obtain false testimony relating to a specific case. Threats, blackmail, violence without such a purpose will have a different qualification with the application of sanctions of another article of the law, for example, extortion

Corpus delicti

Traditionally, the elements of a criminal act include: the object and the objective side, as well as the subject and the subjective side. Each of the components of Article 117 of the Criminal Code of the Russian Federation is described in more detail below.

Object and objective side

The direct object of the crime under Article 117 is the health of the citizen. In this case, there is no mention of a person’s life, because serious or moderate harm to the victim is excluded . Actions that fall under the signs of torture cannot lead to any significant consequences for the life of the victim in advance.

The objective side is understood as the act of the culprit in the form of an action - causing suffering (both to the body and the human psyche) through systematic beatings and other types of violence listed above.

Subject and subjective side

The subject of the composition in question is a sane 16-year-old individual , and the subjective side is expressed exclusively by direct intent.
By mocking the victim, the criminal (torturer) wants him to experience physical and moral suffering and, therefore, deliberately mocks him, continuously committing negative actions.

Qualifying features

Their list is contained in Part 2 of Article 117 of the Criminal Code of the Russian Federation. The attacker will face a more severe punishment if at least one of the following conditions of torture is present :

• In relation to 2 or more persons.
• When a criminal commits a crime in relation to a citizen who is at that time in the service or performing a public duty (or in relation to his relatives).
• Torture of a pregnant woman when the perpetrator knew about it in advance.
• In relation to a minor (and the culprit knew about his age) or a helpless person (in particular, if there is a financial dependence between the criminal and this person).
• If the victim is kidnapped or taken hostage.
• Using torture.
• When torture is carried out by several persons (with or without prior agreement, or it can be an organized group).
• By hiring another person to carry out the torture.
• If at the time of the crime the victim had motives of hatred (or enmity) based on politics, ideology, race, nationality or religion.

How to prove the fact of psychological bullying

However, there are still several options that will help substantiate the complaint. Here are some of them:

1. Doctor's report. A psychologist can determine that family members have developed certain psychological problems - fears, resentments, low self-esteem, and so on - and all this is a consequence of mistreatment by a relative. This method is especially relevant for children. This way, a school psychologist can immediately determine whether there is psychological violence among children in the family or whether everything is fine.
2. Recorded moment of violence. You can audiotape your spouse/parent's systematic aggressive attacks. The best option is if there is evidence in video format - it will be more specific.
3. Witnesses. If your neighbors, friends, acquaintances have repeatedly witnessed scenes of psychological violence, they will be able to help you bring the offender to justice.
4. Sometimes aggressors themselves admit that they emotionally oppress their loved ones. This usually happens when a person is sick, realizes his guilt and tries to improve.

So, if you have collected at least a little evidence, it’s time to contact the police to get protection from psychological violence. To do this, you need to fill out an application in which you should indicate information about yourself and the aggressor, describe the situation and attach evidence. After registering a statement, your case will be reviewed and the offender will be brought to justice.

Victims of psychological violence also have the right to file a lawsuit for compensation for moral damage. You can file a claim yourself, or you can seek help from a lawyer.

However, it is important to know that such cases rarely reach court, so there has not been much judicial practice in this area.

Article for bullying a person

I am turning to you in the hope of justice, where else. How can we not look for it in court? In 2007, my mother-in-law, Pelageya Ivanovna, signed (I actually signed, at that time she was 86 years old, she could no longer read) a lifelong dependency agreement with Ogorodnik Galina Nikolaevna, in the hope of decent care, help in everyday life and financial support . I, Lyudmila, her daughter-in-law, live separately, and my son, her grandson, Maxim, at that time lived (being registered with me) with her (my husband and I lived there until we got a separate apartment, 10 years). We didn’t even know about the contract, I am disabled from childhood, group 1, and my grandmother always said: You yourself need care, whoever will look after me, I will sign the apartment for him. This is her apartment and her decision, we have no right to put pressure or demand. In September 2008, he and his girlfriend (now wife) left for Novosibirsk, his grandmother was silent. In April 2010, my grandmother called Maxim by phone and cried. It turns out that Ogorodnik G.N. only occasionally came from Kogalym (she is registered there, she has an apartment there and her children-grandchildren), and at that time my grandmother was alone on crutches (in June 2009 she fell badly on the street and needed care, she was helped by my great-niece father-in-law). The grandmother asked Maxim to help her with the termination of the contract with G.N. Ogorodnik, they went to a notary, to a lawyer, ended up with a lawyer, but G.N. Ogorodnik rushed in, told and promised her grandmother, threatened to gather the boys, everything stopped, Maxim left , and at the end of May of the same year Ogorodnik G.N. also left, the grandmother was left alone again. I suggested: Let me live with you, it’s still help. I didn't agree. At the end of May 2011, my grandmother went to Galina (my father-in-law’s great-niece) and lived with her for 10 months. On March 2, 2012, she returned to her apartment, Ogorodnik G.N. already lives there (she made a temporary registration). with husband.

Ogorodnik V.I. My son, Maxim, her grandson, moved to Biysk with his family in June 2011, found a job and lives in a rented apartment. Grandmother went to Maxim on June 2, 2012, she says that Ogorodnik G.N. drinks heavily and sleeps constantly, and Ogorodnik V.I. more often at work or simply absent on business. During the entire duration of the contract, the grandmother did not receive any monetary payments, and the dependency consists of the purchase of several things (robe, underwear, tights and maybe something else similar), consultations at an ophthalmology clinic (absolutely unnecessary), 5-month accommodation in Kogalym (Ogorodnik’s mother G.N., a friend of her grandmother from a young age, was still alive). Agapova Galina helps her grandmother, at the end of November 2010, the first supervisory complaint on termination of the lifelong maintenance agreement was sent to the Altai Regional Court on behalf of the grandmother - they refused, the grandmother still lives in limbo, she cannot understand why they are refusing to terminate the agreement, because The notary said that you can terminate the contract at the first serious violation. Isn’t this a serious violation: Ogorodnik G.N. issued a certificate of ownership of the apartment in GAMES together with Ogorodnik V.I. (the agreement was signed on 10/08/2007, and the certificate was issued on 11/13/2007), although Article 604 of the Civil Code of the Russian Federation says, I quote: The rent payer has the right to alienate, pledge or otherwise encumber the real estate transferred to him in provision of lifelong maintenance only with the prior consent of the annuitant. Nobody asked the grandmother’s consent, and the agreement was drawn up with great violations, the interests of the grandmother were not taken into account. And when the total cost of lifelong maintenance was set at 384,007 rubles, she probably thought that her grandmother would soon die, and that’s what this ridiculous amount was designed for?

Of course, there are a lot of emotions in my letter of request, I feel very sorry for my grandmother, because

Gardener G.N. I simply took advantage of the fact that my grandmother is very elderly (born in 1921), has poor eyesight, is legally illiterate, completely trusts her and never complains to anyone, never asks for anything. The grandmother is the widow of a WWII veteran, a home front worker, awarded the Veteran of Labor medal, has many thanks for her conscientious work and this attitude at the end of her life... This does not honor such unscrupulous people, nor the local authorities, nor the state, which allows them to offend the elderly. Such an agreement is simply a mockery and mockery of an elderly person, and in the regional court they saw a copy and no one reacted, but there is so much talk everywhere about the protection of the elderly. And yet, not every person can resist aggressive help.

Sincerely, Lyudmila 08/12/2012

Another comment on Article 179 of the Criminal Code of the Russian Federation

1. The following are recognized as criminally punishable methods of forcing someone to complete a transaction or refuse to complete it:

1) threat of violence;

2) threat of destruction or damage to property;

3) threat of dissemination of information that could cause significant harm to the rights and legitimate interests of the victim or his relatives.

The threat must be real, i.e. the victim must have reason to fear its implementation.

Coercion may be accompanied by the actual use of physical violence. If this violence consists of beatings, torture, infliction of minor, moderate and serious bodily harm, with the exception of qualified grievous bodily harm (parts 2, 3 and 4 of Article 111 of the Criminal Code), then the act is qualified under paragraph “b” Part 2 of the commented article. In this case, the criminal can threaten and use such violence both in relation to the person from whom he seeks consent to the transaction or to refuse it, and in relation to his relatives.

2. The actual destruction or damage of someone else’s property when forced to complete a transaction or refuse to complete it is qualified under the totality of Art. Art. 179 and 167 of the Criminal Code.

3. Information, under the threat of dissemination of which the perpetrator seeks to force the victim to make a transaction or refuse it, can be very diverse, true or false. Making them public can cause significant harm to the rights and legitimate interests of the victim or his relatives. The threat of disclosing information about an actually committed crime cannot be considered as a manifestation of the objective side of coercion to commit a transaction or refuse to commit it, since it is not capable of causing significant harm to the legitimate interests of the victim.

4. The crime in question has much in common with extortion (Article 163 of the Criminal Code). All requirements for concluding a transaction that is completely or partially free of charge for the forced party must be qualified under Art. 163 of the Criminal Code. In addition, the transactions referred to in Art. 179, may be associated with such objects of civil rights as information, intangible benefits, etc. The commented article also covers cases of coercion to refuse to complete a transaction, including under an already concluded agreement.

Demarcation from adjacent trains

Related elements of Article 117 of the Criminal Code of the Russian Federation are:

1. Causing grievous bodily harm with particular cruelty, mockery or torture (clause “b” of Part 2 of Article 111 of the Criminal Code of the Russian Federation).
2. Clause “c” of Part 2 of Article 112 of the Criminal Code of the Russian Federation is a similar act to the previous one, only in this case the victim is harmed to health of moderate severity.
3. Article 116 of the Criminal Code of the Russian Federation – beatings.

Reference. The difference between torture and the provisions of Articles 111 and 112 of the Criminal Code of the Russian Federation is that in the first case the consequences are not similar to those that arise for the victim when severe or moderate damage to health is inflicted.

In other words, the victim does not lose his ability to work for a long time, does not lose any organ , does not acquire a serious illness, etc.

In addition, the subject of the above-mentioned compounds causing damage to health can be a person who is already 14 years old . As is known, for more serious crimes the age of responsibility decreases.

As for the difference between torture and beating, it lies in systematic actions : when the victim was beaten for some time, for example, daily or several times a week. When qualifying violent actions as beatings under Article 116 of the Criminal Code of the Russian Federation, this sign of constant violence against the victim is not present .

An attacker who once committed a beating that did not cause a slight degree of harm to the health of a citizen (and damage of other degrees as well. Read more about determining the degree of severity here), will be prosecuted under the article “Beatings”, and not “Torture”.

How to avoid

Psychological abuse can be avoided by following simple commandments.

• Before you yell at your child, think about what caused your anger and calm down. After analyzing the situation, calmly discuss everything with your child.
• Observe his behavior, what he likes or, conversely, scares him. This way you can develop his strengths as fruitfully as possible.
• Encourage his successes, no matter how small. The child must know that he has talents and that he will succeed. Support him in good endeavors.
• Talk to your child. Discuss his day at school, his fears, his habits. This way you will get to know him better, be able to understand him and show that you care about him.
• Pay attention. At least five minutes between important tasks - ask how you are doing, or give a hug

  He will feel needed and loved.

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• Show love and care

  This is perhaps the most important and greatest thing you can do. Let your child know that you love him anyway, that his failures are temporary and he can overcome anything.

  And you will support and guide him in this.

Dear parents, remember: the future of your child depends entirely on you. You are responsible for your children, and your actions or words can cause great harm. The main thing is to remember that your child does not owe you anything simply because you gave birth to him and are raising him, and that it is important for him to be needed, loved and valuable to you.

Kinds

The same article of the Criminal Code establishes the types of torture. For example, torture can be carried out against two or more persons . In this case, such a crime will be considered qualified .

In relation to a woman who the offender knew was pregnant . That is, if the offender knew about the pregnancy or saw the belly, the crime is considered qualified . If a woman kept silent about her situation and her sentence was short and the criminal did not guess, the composition will not be considered qualified .

If the crime was committed against a minor, the composition will also be considered qualified.

Another type of torture is the use of torture . Torture is the systematic infliction of pain in order to get what you want.

Carrying out torture not alone, but by an organized group of people is also a qualifying feature of the crime.

Carrying out torture for hire requires the presence of not only a performer , but also a customer , who must bear responsibility equally with everyone else.

Another important feature is the motive of racial, religious and national enmity .

This is unacceptable on the territory of our state, and therefore must be stopped immediately.

Another comment on Article 40 of the Criminal Code of the Russian Federation

1. Physical coercion involves influence with the aim of forcing another person to commit actions prohibited by criminal law, or to put him in a position in which he is unable to fulfill the duty assigned to him (for example, tying up a watchman, which led to the theft of valuables protected by him). It can be expressed in striking (with hands, feet, head), using various devices (handcuffs, rope, etc.), weapons.

Physical coercion is often accompanied by bodily harm. Causing minor harm to health (not to mention beatings), if it is not accompanied by other forms of physical force, cannot really paralyze the will. However, the ability to paralyze the will of a person is crucial for the qualification of physical coercion, therefore it is necessary to establish whether physical coercion led to the loss of will.

2. The issue of criminal liability for causing harm to interests protected by criminal law as a result of mental coercion, as well as as a result of physical coercion, as a result of which the person retained the ability to control his actions, is resolved according to the rules of extreme necessity.

3. The only option for subjugating a person’s will through mental influence is possible through hypnosis. However, the criminal variant of its implementation is practically never encountered, although it is not completely excluded.

Criminal legal characteristics

Torture is caused by various factors. They were carefully studied not only by law enforcement officials, but also by scientists and psychologists. Based on the data obtained, the experts came to the following conclusions that the torture was of the following nature:

• Revenge may be the cause of torture. Bullying, for example, an employee at work leads to the person taking out his anger on other people;
• the cause of torture may be a perverted fantasy;
• sexual dissatisfaction;
• mental disorders and deviations, etc.

In any case, such behavior is considered abnormal and requires various types of checks.

What does judicial practice show under the article?

It is known in practice that Article 40 of the Criminal Code of the Russian Federation is most often applied not independently, but in combination with other articles.

Examples of cases:

1. Citizen K. went to the store to buy groceries, but there he was attacked by a robber and forced to obey him at gunpoint. So, he forced him to take all the money from the cash register from the cashier, put it in his bag and leave the building. Thus, the robber wanted it not to be him, but K. to be brought to justice. After going out into the street, K. gave him the bag, he disappeared, and the police arrived at the scene. K. was detained, but after clarifying the circumstances, they did not initiate a criminal case against him, since physical and mental violence was applied to him. This meant that K. was innocent of committing robbery. He cannot pass through it either as a performer or as an accomplice.
2. Citizen V. was walking with her child on the street when a man ran up to her, grabbed the child and put a knife to his throat. V. was frightened; the criminal told her to remain silent and follow his actions, otherwise he would kill her child. He gave her the package and told her to put it in the trash can and then leave. 15 minutes later, after she left, there was an explosion - a terrorist attack was carried out from this very package. The cameras recorded V. putting the package in the trash can, so she was quickly found and arrested. She spoke about the situation, this was confirmed by witnesses and cameras. Therefore, V. was cleared of responsibility for the main crime. But she still received a fine.
3. Citizen F. worked in a bank at the cash desk. He was carrying out his usual operations when a suspicious young man came in, showed him a machine gun and told him to give him money. F. obeyed, but this was not enough for the kidnapper. He forced F. to open an account for him and transfer several thousand dollars there. After that, he went out and took the stolen goods with him. An investigation was conducted into the fact. F. was found guilty of assisting the criminal, although he could have issued a different account for the criminal than the one he said. F. received penalties.

What are the most common decisions made under Article 40?

In practice, it is difficult to determine whether coercion was surmountable or not, so the court considers the specifics of the case on an individual basis. Half the cases are justified, half are not. It all depends on the specific circumstances of the case.

Psychological and emotional abuse

Let's start with the fact that any violence against a child, be it physical, sexual or psychological, negatively affects the child, ruining his entire future life. Nevertheless, the Criminal Code of the Russian Federation contains articles that provide for punishment only for the first two types of violence. Unfortunately, no for committing psychological violence. It is almost impossible to punish the perpetrators, since often parents do not suspect that they are harming their child, believing that they are acting with the best intentions. Indirectly, this can include incitement to suicide, however, punishment for this can be imposed either if the child has already partially harmed himself, but was saved, or if the tragedy could not be avoided and it is too late.

It should also be said that very often the concepts of “emotional abuse” and “psychological abuse” are confused, believing that they are one and the same thing. This is not entirely true. Rather, the first is included in the second, since human emotions are an integral part of psychology. Emotional violence directly affects the emotional development of the child, while psychological violence affects the psyche as a whole, inhibiting the development of his abilities. Nevertheless, both types of violence have a heavy impact on the future of the little person, shaping him into a broken, sick person. Therefore, we will collect everything that relates to both emotional and psychological violence in one list.

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Objective and subjective side

The object of this crime should be understood as life, as well as human health, both physical and moral. The objective side of this crime is quite broad and therefore subject to detailed consideration.

So, in general, the objective side is characterized as the systematic infliction of beatings or the commission of other actions involving violence against a person. The purpose of committing such actions is to bring all kinds of suffering .

Let us divide all the actions committed during torture into two groups. In one there will be mainly actions aimed at beatings . In the other - different.

Let's start with the beatings. Battering in itself is a blow in its plural form. Infliction of beatings is the repeated striking of the victim, or rather, multiple blows , which occur in one single and very short period of time.

If we talk about other actions associated with violence , then they should be understood as:

• pinching – leaving marks on the victim’s body in the form of strong compression of the skin;
• biting – leaving bite marks of varying degrees of strength on the victim’s body;
• section – leaving on the victim’s body traces from rods and other objects intended in this particular case to cause damage to the skin, and therefore section of the skin;
• thermal effects - the use of electrical appliances as torture;
• pricking – impact on the victim’s skin with the aim of leaving puncture wounds;
• deprivation of food and water - actions aimed at depriving the victim of strength and ability to resist the offender.

Subjective side of Art. 117 of the Criminal Code of the Russian Federation , is characterized by direct intent . Thus, we can say that the person knew about the onset of socially dangerous consequences, desired their occurrence and did everything for their occurrence .

The subject of this crime is a person who has reached the age of sixteen, capable and sane.

Domestic violence against women

According to not the most rosy statistics, when it comes to domestic violence, most often a woman appears as a victim. As a rule, a representative of the fairer sex is forced to endure violent actions on the part of her partner, who is trying to control her, intimidate her, and so on. In this case, there are three types of criminal act. Let's go in order.

Psychological abuse

A psychological abuser has certain characteristics. Such a person cannot control himself, he has a changeable mood, and mostly a bad one. He is prone to regular and unreasonable jealousy and inappropriate behavior.

What are the signs of psychological violence against a woman:

• regularly criticizes on any occasion;
• humiliates and insults;
• insults, using sarcastic nicknames, ridicules, shows complete disrespect for his partner;
• strives to arrange everything in such a way that it is the woman who is to blame for this or that act;
• ignores;
• blackmails;
• compels to commit an act of an obscene nature.

Unfortunately, psychological violence cannot be classified as a legal violation.

Moral violence

With this type of violence, the dominance of one person over another is directly manifested. Such a person may intimidate his partner, threaten, criticize, etc.

Moral abusers most often behave as follows:

• monitor the victim constantly;
• prohibit communication with outsiders, thereby limiting contact with the outside world;
• sexual abstinence;
• manipulation.

Regarding the last point, the victim is influenced by subordinating the victim’s feelings to his own beliefs. This emotional pressure is hidden, while the person is fully aware of what he is doing. Despite this, by certain characteristics this can be detected and stopped:

• exalting personal qualities and achievements to us with the same characteristics of a woman;
• provokes feelings of guilt for almost any actions on the part of the wife;
• creates the preconditions, forcing the woman to praise him;
• causes distress through lies and concealment of necessary information.

If there is an open threat or intimidation, as well as if there is evidence (audio or video recordings), you can write a statement to the district police officer. Initial warnings will follow, followed by arrest, depending on the type of threats.

Physical violence

Physical violence against a woman in the family signals a gender orientation due to constant aggression and dominance. in such cases, the wife is regularly subjected to beatings, torture, and beatings. Damage to health can be either mild or moderate or severe. At the same time, oddly enough, a fairly impressive percentage of victims take this attitude for granted. Like, he hits, it means he loves.

In turn, this is a crime, and often a criminal one. Even if minor beatings occur, the spouse can be restrained with the help of the law. It is worth remembering that where harm to health is easy, serious harm is not far away. Physical violence often leads to death.

Responsibility for a crime

Liability for domestic violence will vary depending on how it was carried out and the consequences it had. If mild physical violence was used, the offender will be held accountable in the form of a fine, forced labor, or correctional labor. A restriction of freedom of up to two years, as well as a prison sentence for the same period, is also likely. The most severe punishment for moderate injuries is imprisonment or restriction of freedom for up to three years, as well as arrest for up to 6 months. If domestic violence has serious consequences, the perpetrator faces imprisonment for up to 8 years.

When choosing a measure of responsibility, the judge will take into account the circumstances of the crime - mitigating and aggravating. Violence against a minor is in itself an aggravating circumstance, therefore it is punishable by a more severe form. The same applies to violence after alcohol and drug abuse.

Threats addressed to you cannot be ignored; for them, the Criminal Code also defines punishment in the form of a fine, arrest for up to six months, and restriction of freedom for up to 2 years. For insulting, the offender will pay a large fine and will be subject to mandatory labor. Sexual violence is punished especially strictly; it entails a sanction of imprisonment for up to 8 years if the person involved is a spouse, and from 8 to 15 years if the target of the violation is a minor.

Domestic violence must be punished, because it can have dire consequences in the form of disability of the victim and even death. You should not feel sorry for a domestic tyrant, his aggressive behavior is a conscious choice, rapists are excellent manipulators, they will behave impeccably, realizing that they have been driven into a corner. People who commit domestic violence have excellent control over their behavior.

A man who once raised his hand against his wife and child will certainly repeat this, feeling his impunity. Don't tolerate this kind of attitude and don't become a hostage to the continuous cycle of bullying. Only you can break the vicious circle of violence by filing a complaint with the police in a timely manner.

Main conclusions

• If, as a result of beating, the health of an individual was slightly damaged (no serious or moderate harm was caused), then these actions are regarded as torture.
• The main signs of torture are the regularity of the abuse, as well as the presence of motives that controlled the criminal.
• Torture is subject to criminal liability under article number 117 of the relevant code.
• As punishment, criminals may be subject to forced labor, and violators may be limited or even deprived of their freedom.

Types of domestic violence

In general, it is usually divided into three types:

• Physical. Most often found on the part of the father of the family - he can cause bodily harm to his wife and children. There are outbreaks of aggression on the part of the mother or adult children.
• Sexual violence is any forced action of a sexual nature.
• Psychological violence is moral pressure on relatives. It is this third type that will be discussed in more detail in this article.

Psychological (moral) violence leads to serious emotional trauma and mental disorders - depression, suicidal thoughts, anxiety, panic attacks, stress, and so on. Typically, this type of violence is characteristic of individuals who want to assert themselves at the expense of others; they enjoy the process of humiliating weaker people. Also, such people often suffer from mental illness - for example, personality disorder, schizophrenia, paranoia, and so on.

The essence of the concept

Bullying is an act of intentional harm done through physical tyranny, verbal intimidation, moral humiliation, coercion and manipulation. Most psychologists are inclined to believe that a pattern of aggressive behavior can appear in childhood due to improper upbringing or lack thereof.

In fact, the main forms of bullying are:

• verbal abuse;
• intimidation using physical force;
• offensive evil mockery;
• an act of an offensive nature;
• psychological aggression;
• behavior that causes moral damage.

Typically, the initiators of bullying are people with a tendency to demonstrate superiority, dominance, control, with an authoritarian character, prone to a rapid transition from a calm state to anger, the use of physical force and aggressive forms of behavior. As a rule, people from close circles (classmates, relatives, neighbors, co-workers) are bullied.