Volume 03 Issue 12-2023
6
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
6-11
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article analyzes the norms of criminal laws defining responsibility for intentional murder in circumstances
mitigating liability in some European countries such as Germany, Italy, Spain, the Netherlands and others. Conclusions
were drawn based on the analysis of the CC of the countries studied.
KEYWORDS
I
ntentional murder, circumstances mitigating liability, “affect”, manslaughter in
the event of an affect.
INTRODUCTION
Dutch criminal law, which has an Institute for
prescribing adequate non-repressive punishment,
does not classify mitigating circumstances into an
independent criminal justice norm.
The
Dutch
legislature
differentiates
criminal
punishment in its various articles reflecting the
rationale for the relief of punishment. In doing so, it
does not form a single list of them, thus providing the
entitlement holder with a sufficiently large freedom
(e.g., mitigation of punishment by age of majority
section 77A-77g).
Dutch criminal law is characterized by the fact that
section XIX of Book 2 contains several contents of
crimes that imply criminal liability for infanticide: (1)
Section 290 contains the content of "common
manslaughter", where the motive for fear of revealing
the fact of the birth of a newborn has a significant
effect on alleviating liability; 2) Section 291 contains the
composition of killing a newborn in aggravating
circumstances, where the aggravating circumstance is
the time of the appearance of the oath - the oath must
appear long before the crime is committed. Thus, the
Research Article
ISSUES OF RESPONSIBILITY FOR INTENTIONAL MURDER IN CASES OF
MITIGATING LIABILITY IN CRIMINAL CODES OF CERTAIN FOREIGN
COUNTRIES
Submission Date:
December 01, 2023,
Accepted Date:
December 05, 2023,
Published Date:
December 10, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue12-02
Komil Khakimov
Doctor Of Law, Head Of The Department Of Criminal Law, Criminology And Anti-Corruption Of Tashkent State
Law University, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 12-2023
7
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
6-11
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Dutch legislator emphasizes that the premeditated
murder of a newborn child has a high level of social
danger, since the culprit in this will have the
opportunity to prepare for the commission of a
crime[1].
In addition, Section 292 defines the specifics of
criminalizing participants and imposing punishment:
their actions qualify as common manslaughter on
general grounds or as manslaughter in aggravating
circumstances
depending
on
the
specific
circumstances of the case (sections 287-289)[2].
The Netherlands is the first country to legalize
euthanasia and all forms of it in 2000. So, in articles 293-
294 of the Dutch Criminal Code establishes the
conditions of a relaxed criminal punishment for
persons who deprived another person of his life at his
sincere request, since only medical personnel are
exempt from criminal liability for this act. The
punishment for these criminal acts consists of
imprisonment for 12 years.
Of interest are the provisions of the German Criminal
Law doctrine concerning cases of mitigating
punishment. Its essence lies in the fact that all
circumstances that allow the differentiation of criminal
punishment should be reflected in the corresponding
norm of criminal law. At the same time, the Criminal
Code of the FRG does not contain a single list of these
cases, which are determined in a special part and are
determined by the analysis of the criminal content or
norms of the General part of the Criminal Code.
The Criminal Code of the FRG does not contain a special
norm that provides for criminal liability for the murder
of a newborn (and a child), such crimes are considered
simple (§212) or severe (§211) manslaughter, depending
on specific circumstances[3].
In the FRG, manslaughter in the event of intense
mental arousal is listed as “less severe manslaughter”
in§213 of the Criminal Code. The German legislature
stipulated that a person commits manslaughter in a
state of no fault, as he would be angered by cruel
treatment or heavy abuse of him or his relative. The
disposition of the substance emphasizes not only the
time, but also the place of commission of the crime: the
crime must be committed at the place where the
culprit was incited. Only in the event of compliance
with these conditions is it considered that a less severe
manslaughter was committed[4].
The cited clause provides two groups of grounds that
allow the court to reduce punishment: 1)
circumstances leading to an affect state; 2) less severe
cases, similar to those cited in§ 213 of the Criminal Code
of the FRG. In our opinion, it is necessary to understand
that the innocence of a criminal subject indicated by
the disposition of§213 of the Criminal Code of the FRG
is not the absence of guilt on the subjective side of this
content (in which the gar about the crime would not
go away), but the absence of illegal reasons in the
actions of the.
The first processes of the emergence of the concept of
affect in the criminal law of foreign countries are
associated with the Bavarian Criminal Code of 1813,
which, according to Article 93, enshrines the relaxation
of punishment if the criminal does not understand that
his actions are dangerous and illegal. As a later
mitigating case of punishment, in particular, in the
form of a case of” suspicion and violation of the mental
state" of the Oldenburg Criminal Code
Included in Article 109, Article 60 of the Criminal Code
of Württemberg, Article 121 of the Criminal Code of
Hesse of 1841, Article 152 of the Criminal Code of Baden,
Article 44 of the Criminal Code of Thuringia[5].
Volume 03 Issue 12-2023
8
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
6-11
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
But, looking at the analysis of norms in the criminal
laws of some foreign countries, they do not define a
single approach to the issue of the state of strong
mental excitement (affect).
Of particular note in this regard are the criminal codes
of the Federal Republic of Germany and Spain.
Paragraph 213 of the Criminal Code of the FRG, known
as "manslaughter in mitigating circumstances",
States:”a person who commits a crime shall be
sentenced to a period of one to ten years if he or his or
her relative is brutally treated by the victim, in the
absence of guilt, or killed in serious situations of
another form, as a result of anger[6].
From the content of the norm of the law, it became
known that CC of FRG, instead of the concept of
“affect” in psychology, refers to the concept of
domestic “anger”, which means the content of
“physiological affect”. In addition, the law establishes
the crime as a necessary sign that it takes place exactly
where
“anger” is provoked by the victim. At the same
time, paragraph 213 of the CC of FRG establishes that in
mitigating circumstances, cases of manslaughter are
taken into account, even in severe situations of
another form as manslaughter. But, there is no
clarifying norm about what circumstances the concept
of” in other forms of severe situations " represents in
itself.
It should also be noted that the provisions of§213 I of
the Criminal Code of the FRG apply differently than
Article 98 of the Criminal Code of Uzbekistan, since
according to the German doctrine of criminal law they
do not create the composition of a criminal offense.
They are defined as the rules for the relief of
punishment that apply in the presence of the
conditions recorded in this norm[7]. According to the
Y. Wesselsa and M. Hettingers, §213 of the Criminal
Code of the FRG does not make up the composition of
the act, but forms the rule for determining
punishment[8].
The Criminal Code of the GFR provides for the basis of
criminal liability for deprivation in life at the request of
the victim in §216 I.
A constructive sign of the content of the specified
crime is the firm and restrained request of the victim,
which can be expressed both directly before and
slightly earlier than the commission of a socially
dangerous act. The Criminal Code of the FRG
establishes a separate rule under which qualification
under the prescribed mitigating content is excluded: if
the victim has expressed his request under the
influence of false, mistaken or other similar
circumstances, then§216 of the Criminal Code of the
FRG cannot be applied.
In French criminal law, the following types of
compositions of the crime of manslaughter are
distinguished: common manslaughter - article 221-1[9];
manslaughter in aggravating circumstances ( articles
221-2-221-4); poisoning-article 221-5
It is important to note that the French penal code,
unlike the Criminal Code of the FRG, strengthens the
list of grounds for the relief of criminal punishment.
However, in addition, the courts also have the right to
significantly alleviate it, since the sanctions of the
articles determine the level of punishment that is
sufficient, except for the upper limit of the possible
punishment with reference to the applicant. Thus, for
the murder of a newborn child, the guilty mother must
be sentenced to life imprisonment. However, French
judicial practice is following the path of imposing a
softer punishment on mothers[10].
If the intentional deprivation of the life of another
person is committed in an affective state and there are
no aggravating circumstances, then the French
Volume 03 Issue 12-2023
9
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
6-11
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
legislature has ruled that this type of manslaughter is a
violation of the French Criminal Code defines as regular
(“ordinary”) provided for by section 221
-1.
In the same way, the question of qualifying a killing by
deviating from the limits of the necessary defense is
solved. According to the French criminal code, there is
only a clear discrepancy between the severity of
aggression and the means of protection applied to the
grounds for criminal liability and its relief (Part 1 of
Article 122-5)[11].
The Swiss legislature divides mitigating circumstances
into two groups: those describing the identity of the
offender and those describing the crime. These groups
are enshrined in Article 64 of the Swiss Criminal Code,
among which the following can be distinguished: the
commission of a crime with excruciating motives, the
presence of an individual in a disadvantageous
position, the presence of an individual in anger or the
reason for this unworthy insult, etc[12]. The mitigating
compositions of manslaughter according to the Swiss
Criminal Code are: manslaughter in the case of an
affect (article 113), killing the victim at his request
(Article 114), as well as killing the child (Article 116).
Article 113 of the Swiss penal code, “manslaughter in
the event of an affect”, provides several alternative
grounds for significantly alleviating criminal liability.
They are excuses, a state of intense mental
excitement, as well as the presence of a situation that
causes injury to the psyche[13]. In order for criminal
liability under this article to arise, firstly, an affect must
exist; secondly, it must be excused. In this case, the
Swiss criminal law does not explain what is meant by
excuses, nor does it say anything about the
provocative role of the victim. The norm indicates only
a special emotional state of the culprit, which can
manifest itself in a situation of intense mental
excitement or serious injury to the psyche.
In Swiss criminal law, the concept of affect has the
same meaning as in the criminal law of most countries,
including Uzbekistan. However, in the case of affect,
there is a sign of excuses in the composition of the
crime, which implies criminal liability for manslaughter,
which makes it possible to include the specified crime
in the content that alleviates the killing of a person. In
Swiss judicial practice, it has been argued that the
excuse of an affect must be determined both for
subjective reasons and by the presence of
inflammatory (calling) external conditions. That is, the
court indicates that the occurrence of an affect state
should be caused by external triggers, which, in
addition to internal causes, are also caused by the
victim.
As a basis for alleviating criminal liability for the murder
of a child, the Swiss legislature defines the special
psychophysical condition of a woman associated with
childbirth and specifies it directly in the disposition of
Article 116. However, the criminal law does not specify
how long the specified time frame will last. There are
no such explanations in judicial practice either, but it
evaluates it taking into account the specific
circumstances of the case[14].
The Swiss Legislature did not provide for a separate
criminal justice norm governing the fundamentals of
criminal liability for manslaughter, deviating from the
necessary defense limits or the measures necessary to
apprehend the perpetrator of the crime. Nevertheless,
according to Article 66 of the Swiss Criminal Code, the
court will ease the punishment for such crimes at its
discretion. If the deviation from the permissible limits
is associated with “excruciating excitement or
confusion”, and the reason is this, the culprit will not
be punished at all.
The Italian Criminal Code provides an approximate list
of mitigating circumstances and sets out relatively
Volume 03 Issue 12-2023
10
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
6-11
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
formalized “arithmetic” rules for the phased reduction
of criminal punishment. As a rule, when the court is
easing the sentence, it is able to appoint a person
below the lower limit of the sanction of the article only
if several mitigating circumstances are in majud.
According to Article 578 of the Italian penal code, the
death of a fetus at the moment of delivery and of a
newborn baby still at birth is recognized as a
manslaughter
committed
under
extenuating
circumstances. The specified criminal justice norm
contains a mitigating condition, that is, the material or
spiritual state of the mother, which must be
recognized as not inherent in the Criminal Code of the
countries we study. It can be assumed that the Italian
legislator wanted to show similar circumstances in the
disposition of the article and show the specific
circumstances of the commission of the crime, as well
as its effect on the spiritual state of the culprit. The
Italian legislature allocates the measure of criminal
liability of the mother who committed this crime: from
4 to 12 years, as well as for its participants (no less than
21 years that can be reduced), the penalty of
imprisonment is established[15]. The Italian criminal
code, as well as some other foreign countries, does not
contain any other specific composition of murder
known to the Criminal Law of Uzbekistan. In our
opinion, this testifies to the lack of systematic
differentiation of responsibility for killing.
The Spanish Criminal Code also places the affect case
in the category of cases that alleviate liability. Section
22 (3) of the Spanish CC defines:”on the basis of
mitigating circumstances will serve an affect created if
the culprit has lost consciousness or due to other
serious reasons, but this situation arises in a situation
where all conditions are not sufficient for full release
from criminal liability provided for in this chapter"[16].
From this norm of the Spanish Criminal Code, it is
known that any short-or long-term emotional state
that arises as a response to an inappropriate behavior
or any other serious cause committed by the victim is
considered an affective state[17]. But, the Spanish
Criminal Code does not specifically mention any
socially dangerous act committed in an affective state
as an independent criminal entity. It can be seen from
this that all crimes committed under the above
conditions
are
recognized
as
a
mitigating
condition[18].
The following conclusions were drawn based on the
analysis of the CC of the countries studied:
1) it is necessary to take into account in proportion
both the characteristics of the guilty person and the
circumstances that characterize a socially dangerous
act at the level of differentiation of criminal liability
(Switzerland).
2) establish a direct connection between the specific
psychophysiological situation of the culprit in the
disposition of the criminal legal norm directly in
relation to the murder of a newborn child by the
mother and, accordingly, a significant relief of criminal
liability.
3) the use of special (softer) provisions of the validity
of criminal justice norms on liability for manslaughter
only when there are a number of conditions.
4) analysis of foreign country criminal law shows that
harm in the seizure of a person who committed a crime
is not always considered as an independent state that
excludes the criminality of an act. Regulation of this
issue in the Netherlands, the FRG and other countries
is considered within the framework of the necessary
defense.
REFERENCES
Volume 03 Issue 12-2023
11
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
6-11
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
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Doi:https://doi.org/10.37547/tajpslc/Volume 03
Issue p. 03-15.
