Managing your Health: Criminal Legal Aspects under the Legislation of Russia

The Criminal-Legal Meaning of the Disposal of One’s Health

Belyaev NA, et al. [11]; Kovalev MI, et al. [12]; Martsev AI, et al. [13] refer to criminal acts only cases of causing serious or moderate harm to a person’s health with his consent. They see the justification of their position in the existence of the institution of private prosecution, according to which, causing minor harm to health (minor bodily injuries) is punishable only on the complaint of the victim. So, Martsev AI, et al. [13] notes that “... in relation to acts that cause physical (bodily) harm to a person, it can be caused in an amount not exceeding that established for crimes for which prosecution can be terminated at the initiative of the victim”. A practically similar point of view is expressed by Kuznetsova NF, et al. [14]: “In the case of deprivation of life and causing any, except light, harm to health, the consent of the victim has no legal significance”. However, he immediately notes: “The attribution of causing minor harm to health and insults to the cases of private prosecution does not mean the consent of the victim to such actions, but his refusal from the possible criminal prosecution of his abuser for one reason or another” [14].

So, causing serious or moderate harm to health, even with the consent of a person, should be recognized (and is recognized) as criminal. Regarding the impossibility of causing minor harm to health with the consent of a private person, we agree with the opinion of Belyaev NA, et al. [11]; Kovalev MI, et al. [12]; Martsev AI, et al. [13]; Kuznetsova NF, et al. [14]. But here it is worth making a few clarifications. In this regard, the last two positions seem to be fairer for us for a number of reasons. So, it is very difficult to justify the inviolability of causing even slight harm to a person’s health with his consent. In this regard, it is advisable to shift the focus from the material grounds of such justification to the formal moments provided for by the legislation of the criminal cycle. In particular, it can be assumed that if the legislator has traditionally linked and connects the initiation of criminal prosecution for causing minor harm with the clearly expressed will of a private person, then this rule can also be transferred to the exclusion of criminality of an act expressed in causing such harm with the consent of a person. But here we will once again point out the validity of the statement of Kuznetsova NF, et al. [14] that the nature of causing harms with consent is not identical with the legal nature of initiating criminal prosecution. In the first case, the act is not criminal at the time of its commission; in the latter case, the crime has actually been committed and the will of the victim is manifested only when deciding whether to initiate criminal prosecution (refusal of it).

At the same time, individual acts of causing harm to health with the consent of a person may exclude the criminality of the act. Such circumstances occur in cases of surgical medical intervention, donation, sports, etc. Therefore, the onset of responsibility for causing physical harm with the consent of a person is not unconditional. Moreover, it requires clarification of the fact that here we are talking about the so-called “pure” cases of encroachments on bodily integrity, i.e. acts provided for in Chapter 16 of the Criminal Code of the Russian Federation (hereinafter-the Criminal Code of the Russian Federation) “Crimes against life and health”. If causing harm to health with the consent of a person acts as a way of committing another crime, the criminal legal meaning of such consent changes. Here, consent can influence the qualification of criminally significant acts (including crimes), and in some cases, the imposition of punishment.

Own Research of the Question of the Criminal- Legal Significance of the Realization of a Private Interest (Expressed In Behavioral Acts) in the Qualification of Criminally Significant Cases of Harm to Health

The realization of the patient’s private interest in providing him with medical care has different criminal-legal significance. Compliance with the conditions for the legality of providing medical care (defined, as a rule, in medical regulations) excludes cases of causing serious or moderate harm to health from the number of criminally punishable. So, for example, according to the testimony of medical workers, the fracture of several ribs during the production of direct heart massage is evidence of conscientious assistance to the patient, his salvation. These actions are evaluated according to the rules of extreme necessity and reasonable risk (Articles 39, 41 of the Criminal Code of the Russian Federation). If there was an error of the doctor due to his negligent or unfair attitude to his professional duties and the act caused serious harm to the patient’s health, the act should be qualified under part 2 of Article 118 of the Criminal Code of the Russian Federation. An important condition for such qualification is the patient’s consent to provide him with medical care (again, with the exception of cases of medical intervention (treatment) determined by the legislation of Russia against the will of the patient). The infliction of light and moderate harm to health in such cases excludes the criminal liability of doctors.

The private interest of a healthy person who has applied for medical care in healthcare institutions also has an important criminal legal significance. The presence of desire (consent) artificial insemination and implantation of an embryo, artificial termination of pregnancy, medical sterilization, donation of blood and its components, transplantation of human organs and (or) tissues, conducting a medical experiment excludes criminal liability of a doctor. If, as a result of such medical manipulations, serious harm is caused to the patient’s health, which is characterized by signs of non – intended harm (for example, plastic surgery of the face caused vision loss; taking blood from a donor-blood poisoning, etc.), this gives reason to speak about the careless form of the fault of the harm-causer (medical worker). Such acts should also be qualified under Part 2 of Article 118 of the Criminal Code of the Russian Federation. The lawful conduct of an artificial termination of pregnancy, along with the consent of the patient, requires that the doctor has a higher medical education of the appropriate profile, otherwise it should be about the responsibility of the culprit under Part 1 or 3 of Article 123 of the Criminal Code of the Russian Federation. The lack of consent determines the qualification of the actions of a doctor who has an education of the appropriate profile, according to Article 111 of the Criminal Code of the Russian Federation.

The presence of the consent of the patient (both healthy and sick) to commit manipulations of a medical nature against him, but the absence of an appropriate license from the harm-causing person engaged in private medical practice or private pharmaceutical activity, allows us to speak about the presence of signs of a crime under part 1 of Article 235 of the Criminal Code of the Russian Federation. It should be noted that the legislator in part 1 of Article 235 of the Criminal Code of the Russian Federation uses the phrase “causing harm to health”, without specifying the degree of its severity. Therefore, from the standpoint of the law, harm to health can be of any severity.

The infliction of serious or moderate harm to health during sports excludes criminal liability of the harm-causer if he complies with the rules of a particular sport. Causing serious or moderate harm to health in violation of the rules of sports competitions should be regarded as follows. Thus, in accordance with the current criminal law, an intentional violation of the rules of sports competitions, which entailed causing serious harm to health through negligence, should be qualified under art. 118 of the Criminal Code of the Russian Federation, solving the problem of mitigating punishment not at the stage of qualification of the act, but in the process of assigning punishment. At the same time, the athlete is subject to criminal liability only for intentional violation of the rules of sports competitions that caused serious harm to the opponent’s health. Accordingly, if there was a careless violation of the rules of sports competitions, as a result of which serious harm was caused to the opponent, it is not necessary to raise the question of criminal liability of the harm-causer.

A slightly different legal situation arises in cases of serious harm to health during the production of a scientific experiment (involving physical isolation from society), when security measures are applied to certain categories of citizens, expressed in their temporary placement in a safe place, as well as the use of the disciplinary power of parents to children. In all these cases, it is necessary to talk about the criminal responsibility of the perpetrators. So, if, as a result of a scientific experiment involving the isolation of a person from society, a person-object of research has a mental disorder (serious harm), the head of the experiment should be held responsible under part 2 of Article 118 of the Criminal Code of the Russian Federation. The reference to a reasonable risk is not applicable in this case, because the private interest (consent) of the experimental person extends to the restriction of physical freedom, but not to causing harm to his health. This rule fully applies to the situation of causing serious harm to health when applying security measures, since the isolated person agrees to temporarily place him in a safe place, but not to cause harm to health in any way.

The use of the disciplinary power of the parents, which resulted in causing serious harm to the child’s health due to negligence, additional qualification under Article 118 of the Criminal Code of the Russian Federation is not required. This act is covered by Article 156 of the Criminal Code of the Russian Federation. If the harm is caused intentionally, the act forms a combination of Article 156 of the Criminal Code of the Russian Federation and the corresponding article of Chapter 16 of the Criminal Code of the Russian Federation (paragraph “ b “ of part 2 of Article 111 or paragraph “in”

Part 2 of Article 112 of the Criminal Code of the Russian Federation on the basis of “in relation to a minor or other person who is obviously in a helpless state for the guilty person”).

Recently, the facts of the creation of religious and other public associations whose activities involve violence against citizens, self-harm or harm to human health with their consent have become widely known. Thus, according to Galiakbarov RR, et al., “The facts of causing such harm are closely related to the ideas of physical self-torture and asceticism, which is the basis of a number of creeds. Followers are often required to suffer physically” [9]. Self-harm or with the consent of a person, if such activity is carried out on behalf of, as well as within the framework of the activities of a religious or public association, it is considered criminal not only to create and manage such an association, but also to participate in it (Article 239 of the Criminal Code of the Russian Federation). Consequently, the private interest of a person associated with his participation in the activities of such a religious association can act as a constructive sign of the corpus delicti provided for in Part 3 of Article 239 of the Criminal Code of the Russian Federation on the basis of “participation in the activities of the specified association”. At the same time, if there was self-mutilation, the person should be held liable only under Part 3 of Article 239 of the Criminal Code of the Russian Federation. If the harm is caused by another ordinary member of the sect with the consent of a person, the harmer is liable under part of Article 239, as well as for intentionally causing serious or moderate harm to health (Article 111 or 112 of the Criminal Code of the Russian Federation). Intentional actions of such persons that caused minor harm to health are covered by Part 2 of Article 239 of the Criminal Code of the Russian Federation.

There is a special question about the responsibility of a person when self-mutilation on his part acts as a way of committing another crime. The current criminal legislation defines two such cases provided for by Article 328 of the Criminal Code of the Russian Federation (in which self- mutilation can act as one of the ways to evade military and alternative civil service) and Article 339 of the Criminal Code of the Russian Federation (in which self-mutilation can act as a constructive sign of the objective side of the act). Naturally, a person who has caused harm to his health is liable only under these articles of the Criminal Code of the Russian Federation.