Distinguishing between Intention and Negligence in Criminal Offences against the Person's Life and Health

Abstract

As criminal offences against the person's life and health can be performed both intentionally and by negligence, this article deals with problems of distinguishing between intent and negligence in lawsuits of this category. The specialized section of the Criminal Code includes separate constitutions for premeditated murder and manslaughter (CC Art. 129 and 132), and structures of intentional and negligent bodily injury, both severe and light (CC Art 135 and 137; CC Art 138 and 139). Therefore, most problems both in pretrial and trial hearing of the case arise during proving the subjective evidence of criminal action in lawsuits of these categories. As it is known, both forms of culpability, i.e. intention and negligence, differ one from another according to their content of will and intellectual moments. On this basis, a distinction is made between direct and indirect intention, whereas negligence is divided into recklessness and conscious (advertent) negligence. Discussing direct and indirect intent and problems distinguishing between them, the article pays a lot of attention on a person's perception of inevitability of the dangerous outcomes. It is considered that only in case of direct intention the perpetrator perceives that dangerous outcomes will inevitably arise, whereas in indirect intention - it is only a probability. It can be noted that courts often make a faulty determination of indirect intention of a person's actions, even though objective circumstances of the case confirm that the culprit wanted to 99 kill another person or disturb his/her health. The author of the article doubts whether indirect intention in crimes against person' s life and health is possible. In her opinion, it is difficult to imagine how, in case of indirect intent, a person may not want to take another person's life or disturb his/her health, if he/she understands that a certain conduct will inevitably lead to a specific result. However, the major problems in court practice concern the difficulty distinguishing between intention and conscious negligence, when a person is killed by striking a single blow by a hand on another person's head. In these cases it is difficult to determine if the offender understood that by striking a blow on a head he/she can take another person's life. In court practice such action is usually qualified according to CC Art. 129 as premeditated murder, or according to CC Art. 132, as manslaughter. However, the author considers that qualification of the action according to one of the above articles is not sufficient and suggests qualifying the action according to CC Art. 132 and 135 as concurrence of manslaughter and intentional severe and light bodily injury.