THE CRIMINAL OFFENCE OF MURDER IN ARTICLE 135; PARAGRAPH 3 OF THE CRIMINAL ACT Cover Image

КАРАКТЕР КРИВИЧНОГ ДЕЛА УБИСТВА ИЗ СТАВА 3. ЧЛАНА 135. КЗ
THE CRIMINAL OFFENCE OF MURDER IN ARTICLE 135; PARAGRAPH 3 OF THE CRIMINAL ACT

Author(s): Radosav Petrović
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Правни факултет Универзитета у Нишу

Summary/Abstract: The criminal offense of murder referred to in para. 3, sec. 135 of the Criminal Code is one of the qualified aspects of criminal offense of murder. Such a criminal offense had been provided for even before coming into force of the Novel of Criminal Code of 1959, and that in sec. 135, para. 2, and in para. 4 of the same section. By the Novel of Criminal Code of 1959 these two criminal offenses are provided for in para. 3, sec. 135, so that by this dispositioin is incriminated a new criminal offense. Pursuant to para. 3, sec. 135, such an offense exists if a person commit fitfully more murders besides those referred to in sec. 136 and 138 of this Code and so regardless of his being judged for all the murders by application of a disposition on concurrence of crimes or previously convicted for some of them.Although, the Novel of the Criminal Code of 1959 formulated more precisely this criminal offense; there are in the theory as well as in the jurisprudence various problems, and questions where on are taken different point of view. One of such questions is also the nature of the provision of para. 3, sec. 135 of the Criminal Code. In our juristic theory and judicial practice there are crystallized up to now three different conceptions on the character and the nature of this provision. Pursuant to one conception, in the provision of para. 3, sec. 135. of the Criminal Code, there is no question of an independent and unique offense, but only of penalty provided for separately. Such a conception is sustained by Dr. Branko Petric. He came to such a conclusion by previously ascertaining that, as the para. 3 of said section is concerned, there is no question of an extended, complex and qualified criminal offense. Such an opinion is eroneous. We agree that there is not any question of an extended or complex, criminal, offense, but we cannot agree that there is not a question of qualified criminal offense. That is there is no question of a qualified criminal offense of murder, Dr. Branko Petric came to by taking erroneously for this criminal offense sec. 8, para. 10, of the Criminal Code. It is true that sec. 8„para. 1, of the Criminal Code does not apply to the provision of para. 3, sec. 135 of the Criminal Code. Even the Supreme Court of Serbia in its decisions taken recently sustain almost the same point of view. According to it, if a person deprive wilfully of life more persons, then such a person commits more criminal offenses, of murder referred to in para. 10 sec. 135. of the Criminal Code. Nevertheless, punishment for those murders is inflicted in pursuance to para. 3 of said section, what means that in para. 3, sec. 135 of the Criminal Code only the penalty is separately provided, for in regard to a person who commits wilfully more murders. Another standpoint, which prevails in theory as well as in the jurisprudence, considers that in this provision there is a question of an independent, unique and cumulative criminal offense of murder. Such an opinion is sustained by Prof. Dr. Bogdan Zlataric, Prof. Dr. Janko Tahovic, Dr. Mirko Perovic and by the comments of the Criminal Code in its Ljubljana jurists' edition. According to the above said authors, the legislator by the provision of para. 3, sec. 135 of the Criminal Code, more murders in an ideal or real concurrence merged into a "unique criminal" offense of a qualified murder and, so resorted to the construction of a cumulative criminal offense, by turning aside thus from the general prescriptions on concurrence. The legislator did that to make possible the infliction of most severe penalty to a multiple murderer, which, pursuant to the provisions on the concurrence could not be pronounced. Such apoint of view is generally sustained also, in our judicial decisions. According to our opinion, this is the only correct standpoint and it is consonant to the provision of para. 3, see. 135 of the Criminal Code. A third standpoint is sustained in an unpublished sentence of the Supreme Court of Yugoslavia. In this sentence the Supreme Court of Yugoslavia sustain that in case of a person having wilfully deprived of life more persons, that such a person committed as many independent criminal offenses of murder referred to in para, 3, sec. 135 of the Criminal Code as it committed wilful murders. To such a stand point this Court came by erroneously understanding the nature of the provision regardless of his being Judged for the murders by applying of a provision on concurrence provided in para. 3, sec. 135, of the Criminal Code. Pursuant to the opinion of the Supreme Court of Yugoslavia this provision allows for the faculty of the perpetrator being judged simultaneously for one or more murders wilfully committed and for such murders to be inflicted a unique punishment by applying there to the provisions on concurrence. As the provisions on concurrence are applied so that the perpetrator who committed more criminal offenses, if simultaneously judged for the respective offenses, is inflicted a unique punishment for all the offenses, but so that for every one of those offenses is, previously determined a separate punishment. Here no one of the criminal offenses lose its independence - nor its individuality. Therefore, even when the para. 3, sec. 135, of the Criminal Code is concerned, the provisions on concurrence are to be applied and so that each murder is to be qualified as a murder referred to in para. 3, sec. 35 of the Criminal Code, and then for all the murders will be pronounced a unique punishment. We are of the opinion that there is, as far as the provision of para. 3, sec. 135 of the Criminal Code is concerned, question, of a unique, independent and cumulative criminal offense of murder. A qualified aspect of a murder is given pursuant to para. 3, sec. 135 of the Criminal Code when a person after willful murder commits another willful murder. In such a case, those two murders together acquire a new aspect, they become a criminal offense of murder (provided for in para. 3, sec. 135 of the Criminal Code. Here the second murder serves as a qualificatory circumstance and together with the first one constitues a qualified aspect of murder referred to in para. 3, sec. 135 of the Criminal Code. If the perpetrator stopped at the first murder, he would respond for a simple murder, should there not be fulfilled the qualificatory circumstances.But, as soon as besides such a murder he committed another murder, he committed a grave criminal offense referred to in para. 3, sec. 135 of the Criminal Code.

  • Issue Year: III/1964
  • Issue No: 3
  • Page Range: 93-114
  • Page Count: 22
  • Language: Serbian