Russian Criminal Law Research Articles

Lawyer’s investigation in the criminal the process of Russia

This article is devoted to the consideration of some aspects of such an institution in the criminal process of the Russian Federation, which bears the doctrinal name of a lawyer’s investigation. The views of various authors on the content of the essential aspects of the concept of a lawyer’s investigation, as well as on its possible forms of practical implementation, are analyzed. The authors of the article conclude that there are norms in Russian criminal procedure law that make it possible to conduct a lawyer’s investigation. At the same time, the lawyer’s investigation is not clearly regulated by law, even without a legally fixed name. The article emphasizes the need to clarify the legal regulation of this institution in order to increase its effectiveness and provide lawyers with opportunities for more effective protection.

Справедливость как принцип уголовного права

The article examines the essence of the principle of justice in Russian criminal law, its refl ection in the norms of the criminal legislation of Russia, as well as the infl uence of this principle in sentencing.

PATIENTS’ PERSONAL DATA, INCLUDING BIOMETRICS, AS OBJECTS OF CRIMINAL LAW PROTECTION

The article is devoted to the issues of criminal-legal regulation of patients’ personal data constituting medical secrecy. The research objective is to assess the level of legal regulation of public relations, at which criminal encroachments are performed, during the personal data processing, and to improve the Russian criminal law in this sphere. It was determined that the level of criminal-legal protection of personal data requires improving. Illegal trafficking of personal data, including biometric ones, entails a threat to public relations. Biometric personal data are a valuable resource and may entail commitment of such unlawful actions as manufacturing and marketing of fake models of biometric personal data. The author proposes measures to improve the components of crime, stipulating criminal liability for the violation of privacy and of the Russian legislation on personal data (Art. 137 of the Russian Criminal Code). The author asserts the feasibility of establishing criminal liability for unlawful processing of personal data which infringed substantial harm on the rights and legal interests of a person. Taking into account a high public danger of the deeds which can be committed using biometric personal data and their value, we consider it necessary to criminalize the components of crime consisting in manufacturing and (or) marketing of fake models of biometric personal data.

TRENDS IN APPOINTMENT AND IMPLEMENTATION OF PUNISHMENTS IN THE FORM OF MANDATORY AND CORRECTIONAL LABOR FOR CRIMES UNDER PART 1 OF ST. 264.1 OF THE CRIMINAL CODE OF THE RUSSIAN FEGERATION

This article is devoted to the emerging trends in the Russian criminal law, scientific research and judicial practice in the appointment and execution of punishments under Part 1 of Art. 264 of the Criminal Code of the Russian Federation. The article highlights modern scientific views on the content of the category of execution of these types of punishments. The conclusion is made about the humanization of criminal policy.

The genesis of Russian legislation on the loss of a person or an act of public danger committed by him

The article provides a historical and legal analysis of the provisions of Russian legislation on the loss of public danger by a person or an act committed by him, which formed the phenomenon of Russian criminal law, called a change in the situation. The author comes to the conclusion that the social relations associated with the loss of a person or an act of public danger committed by him are due to historical development. The first provisions are found in such normative legal acts as the Judicial Code of 1497, the Cathedral Code of 1649, the Judicial Code of 1550. The studied legislative experience contributed to the establishment of the legal nature of the change in the situation in the composition of various institutions of criminal law.

Special Grounds for Exemption from Criminal Liability for Criminal Bankruptcy: Critical Assessment of a Legislative Novel

One of the consequences following the legislator’s attempts to radically improve the effectiveness of the norms on criminal liability for criminal bankruptcy in July 2021 was the addition of Article 195 of the Criminal Code of the Russian Federation. It came with a note the made it possible for the nominal head of the bankrupt organization to be exempt from criminal liability if they contributed by their actions to compensation for the damage caused by the crime. After analyzing this novel, the author paid attention to the fact that it accumulated not only statutory concepts common for the Russian criminal law, but also certain provisions inherent in competition law. Meanwhile, such a reception was of a shambolic nature, since the legislator did not use the concept of a person controlling the debtor (which, obviously, he assumed), but only one of the presumptions of control over the debtor — extracting benefits from illegal or unscrupulous behavior of the debtor, which does not seem quite correct. In addition, the comment does not imply any encouragement for the fake manager for disclosing information about the debtor’s property that was hidden by his controlling persons, although this approach is present in the bankruptcy law and increases the chances of creditors to restore their violated rights. Moreover, the exemption of the guilty person from criminal liability is for the most part dependent on the actions of third parties, and not the nominal value itself. The key conclusion of the study is that the considered norm is unlikely to be applied in practice both due to the lack of a proper incentive for the nominal value, and due to the uncertainty of the procedural mechanism of its application. Following the critical evaluation, the author proposes the optimal, in his opinion, revision of the analyzed norm.

The Content of the Concept of «Legal Owner» in Deciding the Fate of Material Evidence in the Form of Property Obtained as a Result of a Crime, and Income from this Property

The paper reveals the meaning of the term «legal owner» in relation to material evidence in the form of property obtained as a result of a crime, and income from this property. It is noted that the absence of the content of this concept in the criminal procedure law causes difficulties in its interpretation by law enforcement agencies. The essence, legal nature, the mechanism for the implementation of restitution in the Russian criminal procedural law are disclosed. Problematic situations and possible solutions to the application of criminal procedural restitution are considered, when both the victim of the crime and the conscientious purchaser of property obtained by criminal means simultaneously claim to be the «legal owner» of material evidence. The possibility of applying in the criminal procedure the norms of civil law on the prohibition of reclaiming certain objects of civil rights from bona fide purchasers is analyzed. The conclusion is substantiated that under the legal owner specified in paragraph 4 of part 3 of Art. 81 of the Code of Criminal Procedure of the Russian Federation should be understood as the owner of property lost as a result of a crime, as well as another person who legally owned it at the time of the crime.

О целесообразности включения дефиниции «электронные доказательства» в уголовно-процессуальный закон

The article is devoted to studies of “electronic evidence” institutions in a context of determination of its true position in a system of evidence sources which is formed and functions within russian criminal procedure law existing for a long time. For reviewing and then analysing in this study there have been presented positions of scientists concerning the question of appropriateness of inclusion of the definition “electronic evidence” in existing russian criminal procedure act. There is differentiated approach to the problem of studying the “electronic evidence” phenomenon and its usage as independent type in the system of physical evidences. Taking into account the actual reality conditions, usage of “electronic evidences” in the process of proof on the starting level of criminal procedure is presented from the point of practice, thus, the necessity of innovations of independent and separate type into the existing system of physical evidences is marked.

THEORETICAL FOUNDATIONS FOR DETERMINING THE OBJECT OF COERCION TO COMMIT A TRANSACTION OR REFUSAL TO COMMIT IT (ARTICLE 179 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION)

The reform of Russian criminal law is an objective need due to a number of objective factors. Thisprocess is obviously extremely complex, requiring a deep analysis of the current legislation, the practice ofits application, as well as the position of the doctrine of criminal law. For a long time, Russian legislationwas largely based on constructions borrowed from foreign codes and laws. Currently, Russia has its ownsignificant experience in lawmaking and law enforcement. At the initial stage of improving the criminallaw, it is necessary to build its system, which will determine the model of criminal law protection of certainpublic relations. The structure of the new criminal law should be based on clearly formulated elements ofcrimes based on the analysis of the signs of the object of criminal encroachment. It is the object of the crimethat is the traditional basis of Russian criminal law. In this paper, the author studies the object of coercion tocommit a transaction and, based on the studied theoretical and practical material, comes to the conclusionthat public relations protected by Article 179 of the Criminal Code of the Russian Federation are not limitedexclusively to economic activity, but may arise in other areas, including personal, family relationships. Thisallows us to conclude that it is necessary to formulate responsibility for forcing a transaction in other chaptersof the criminal law.

Administrative precedence in the context of a multisectoral understanding of its features in the criminal law of Russia and Belarus

The article discusses the understanding of administrative precedence in the criminal law of the Russian Federation and the Republic of Belarus. The author raises the problem of understanding the administrative precedence through the prism of the time when the crime was committed and the retroactive effect of the criminal law. The question of the validity of bringing a person to criminal and administrative responsibility in the event of a crime with signs of administrative precedence is also discussed. The author concludes that the administrative precedence is a sign of the subject of the crime, and not of the objective side of the corpus delicti. It is also justified that bringing a person for repeated or repeated offenses to administrative rather than criminal responsibility cannot in the future serve as a repeated basis for the perpetrator to be prosecuted for a set of repeated identical acts. For this reason, no one can be held responsible twice for the same act.

Reasonable Time - Is It a Factor of Efficiency in Criminal Proceedings?

The principle of reasonable time, included in Art. 6.1. of the Criminal Procedure Code of the Russian Federation in 2010, is viewed in Russian criminal procedure law theory as a considerable contribution to the development of human rights guarantees in the sphere of criminal court proceedings. The legal nature of this principle, stemming from Art. 6 of the European Convention, which includes the concept «reasonable terms» in the general formula of each persons right to a fair trial, definitely reflects the expectations of all parties involved in criminal procedure relations. However, the introduction of this principle did not lead to any meaningful positive changes in the practice of law enforcement: violations of criminal procedures time limits remain an intractable problem. This problem, caused by the absence of any commonly recognized understanding of reasonable time limits for procedural activities, resulted in risks whose legal consequences are unacceptable for the society, the victims, the accused or the convicted, and create a negative attitude to the court system in general. The authors express their opinions regarding the problem of observing time limits, the understanding of reasonableness in law, and the legal regulation of the observance of procedural limits. They also present suggestions on improving the legal regulation of time limit observance in criminal proceedings. If such a principle of national court proceedings as reasonable time limit (part of the system of criminal proceedings) is violated, it leads to additional problems deteriorating the proceedings for criminal cases. The understanding of reasonable time is connected with the legal conscience of the law enforcer that, on the one hand, is always individual and, on the other - does not necessarily coincide with the opinion of scholars on this issue. The variety of actions and persons who carry them out, especially at the pre-trial stages, makes it necessary to develop a fixed understanding of a reasonable time limit, whose observance should not be equaled with the observance of procedural actions which, due to various circumstances, like the weather or some circumstances of subjective nature, could contribute to the violation of procedural time limits set out by law. Correspondingly, the improvement of the legal regulation of the observance of time limits for procedural actions as an important part of a fair criminal trial presupposes taking into consideration the whole range of relations emerging in the enforcement of criminal procedure legislation.

Extreme Necessity in Case of Harm during First Aid

In the course of the research, the author discovered 31 criminal cases considered by Russian courts resulting in a non-rehabilitating decision due to causing death when providing first aid. At the same time, this phenomenon is mostly unknown to domestic researchers. The purpose of the paper is the criminal law assessment of the first aid provision by non-professional subjects. To achieve this goal, the following tasks were set: to establish the possibility of the presence of an extreme necessity in the provision of first aid; to establish conditions under which causing harm in the provision of such assistance does not entail criminal liability; to make proposals for eliminating defects in law enforcement and improving Russian legislation. To achieve these tasks, the author applied formal legal, formal dogmatic and statistical methods, as well as a set of general philosophical methods, including analysis, synthesis, deduction and induction. As a result of the study, cases of inconsistency of judicial practice with the norms of the domestic criminal law on extreme necessity were identified. Contrary to the arguments of some courts, when harm is caused during first aid, there may be some extreme necessity, exceeding which does not entail criminal liability for causing harm. The conclusions of the study are that the Russian criminal law on extreme necessity corresponds to the tasks facing the legislator; the problem lies in the insufficient understanding of its provisions by the judges. The author made proposals for reforming related provisions of the criminal law on the basis of the legislation of Canada and the United States.

ROMUALD HUBE – PIONEER IN THE TEACHING OF POLISH CRIMINAL LAW

The article presents the figure and the most important scientific achievements of Romuald Hube in the field of the science of criminal law, as well as the legislative work conducted on the criminal law of Russia and the Kingdom of Poland. Romuald Hube is undoubtedly an extremely significant figure in the Polish science of criminal law, although this branch of law was only a part of his scientific interests. It should be emphasized, however, that Romuald Hube significantly developed the science of criminal law, also in its global dimension. Moreover, through his work in the state administration, he actively participated in the creation of this branch of law. He lived and worked in an extremely complicated period due to social changes and an unfavourable geopolitical situation for Poland. Due to the fact that his life and work were associated with a foreign country, Romuald Hube was a scientist often criticized in Poland and ostracized in the community. Hube’s unquestionable contribution to the body of criminal law, with relatively little exploration of it in the doctrine, implies a need to remind the reader of the scholar’s profile.

Наказание в виде штрафа по уголовному законодательству России и Монголии: истоки и современность

The article touches upon certain historical aspects of criminal punishment in the form of a fine. The content of similar and distinctive features of a fine in the modern Russian criminal law, in comparison with the criminal law of Mongolia, is revealed. The positive and negative aspects existing in the mechanisms for the appointment and execution of a fine are noted, statistical information on the practice of its execution is provided, a comparison of the minimum and maximum limits of a fine in the norms of General Parts and sanctions of Special parts of the Criminal Code of the Russian Federation and the Criminal Code of Mongolia is presented.

THE CONCEPTUAL MEANING OF THE CONCEPT OF "CRIMINAL MISCONDUCT" IN THE CRIMINAL LAW OF RUSSIA AND GERMANY: A COMPARATIVE ANALYSIS

The purpose of the study. The proposed article presents an analysis of the conceptual meaning of the category of criminal misconduct in Russia and Germany in order to demonstrate the "foreignness" of the offense for the Russian criminal legislation. The article points out the fundamental differences between its proposed designs by the Supreme Court of the Russian Federation and the design of a misdemeanor in the Criminal Code of Germany. Conclusions. The authors conducted a sociological survey of 62 respondents on the expediency of introducing the category in question into Russian criminal law, the result of which is a statement of awareness by persons both with and without higher legal education of its "foreignness" for Russian criminal law. The article shows that a criminal offense contradicts the material concept of a crime in the Criminal Code of the Russian Federation and other criminal law institutions and norms of Russian criminal law based on the category of public danger of crime and personality. The authors also conclude that the category of misconduct is insignificant for both the legislator and the law enforcement officer in Germany. While the consolidation of a criminal offense in the Russian criminal legislation will entail serious and at the same time scientifically unjustified changes in it.

General and special types of exemption from criminal liability: appointment, purpose, design features

The subject of the article is the problem of compliance of general and special types of exemption from criminal liability with the legal nature of criminal law, as well as the logical consistency of criminal law matter.The purpose of the article is to establish the key factors influencing the construction of the content of general and special types of exemption from criminal liability by studying the goals, purpose and legal nature of the latter.The methodology includes dialectical, comparative legal methods, systematic analysis of legal academic literature, as well as interpretation of Russian criminal law.The main results, scope of application. The establishment of norms providing for the release of persons who have committed crimes from criminal liability in the law is justified by the disappearance (reduction) of the public danger of the committed act and (or) the personality of the person who committed it. Modern trends of criminal policy require the presence of such an instrument in the legislation, which allows avoiding unnecessary criminal repression, restoring the rights of victims. At the same time, the consolidation of special types of exemption from criminal liability in the text of the Special Part of the Criminal Code of the Russian Federation pursued two main goals: (1) To avoid the onset of more serious consequences (causing death or harm to the health of hostages); (2) Revealing and disclosure of latent (hidden) crimes. However, despite the indicated feature, special types of exemption from criminal liability should be built taking into account the tasks facing the criminal law of Russia and the goals of criminal liability.Conclusion. The content of the types of exemption from criminal liability is directly influenced by the purpose and goals of this criminal legal institution. The further improvement of this legal institution should be carried out exclusively taking into account the tasks facing the domestic criminal law.

Перспективы расширения круга принудительных мер воспитательного воздействия, применяемых при освобождении несовершеннолетних от уголовного наказания

The release of minors from criminal punishment is one of the manifestations of the method of encouragement in the criminal law of Russia. The expansion of the range of alternative measures to criminal punishment applied to minors has great importance. The article analyzes the legislation of application of measures alternative to criminal punishment in number of foreign countries. An analysis of French legislation has shown that the French model of juvenile justice assumes an individual approach to a juvenile offender, creating for him the most favored regime in terms of release from punishment. There are several measures that deserve attention in the legislation of a number of countries near Russia abroad, along with compulsory measures of educational influence, similar to the measures provided for in the Criminal Code of the Russian Federation. In particular, the Criminal Code of the Republic of Moldova provides for such a measure as imposing on a minor the obligation to participate in a probation program. Such programs differ both in orientation (probation programs for the correction of social behavior or social reintegration) and in the way minors participate in them (group or individual probation programs). The essence of compulsory measures of educational influence is the upbringing of minors and restriction of misconduct. According to the authors’ opinion, compulsory measures of educational influence, not being any form of realization of criminal responsibility, can, if properly applied, have a greater educational effect on minors than criminal punishment or another form of criminal responsibility. The Russian legislator pays obviously insufficient attention to the regulation of compulsory measures of educational influence. The range of compulsory measures of educational influence in the Criminal Code of the Russian Federation should be significantly expanded, which will contribute to the individualization of the release of minors from criminal punishment. It is proposed to include in the range of compulsory measures of educational influence such measures as imposing the obligation to publicly or in another form determined by the court to apologize to the victim; imposing the obligation to take a course of psychological assistance; imposing the obligation to take a course of compulsory education; imposing the obligation to participate in the probation program; gratuitous socially useful educational work (in institutions and organizations that provide social and medical assistance).

Problems and prospects of digitalization of criminal law in Russia

Problems and prospects of digitalization of criminal law in Russia

The concept of economic crime in the criminal law of Russia

The concept of economic crime in the criminal law of Russia

К вопросу о составе преступления, сопряженного с незаконным предпринимательством (ст. 171 УК РФ) в свете теории криминализации и декриминализации

The research is focused on the fact that illegal enterprise is characteristic of the whole world. At the same time, the informal sector of the economy accounts for 10 to 20 % of gross domestic product in developed coun-tries and about 60 % in emerging economies. We indicate that the Criminal Code of the Russian Federation re-flects responsibility for illegal enterprise in Article 171. We emphasize that there is a discussion at the doctrinal level about the expediency of having this corpus delicti. The purpose of the study: to analyze the (un)foundedness of the criminalization of corpus delicti associated with illegal business (Article 171 of the Crim-inal Code of the Russian Federation). Tasks: to analyze the social danger of an act related to illegal enterprise; characterize the relative prevalence of this act; to study the historical continuity of the reflection of this corpus delicti in the criminal law of Russia; conduct an analysis of foreign legislation to reflect such a corpus delicti. As a result, we analyze the social danger of this crime, as well as its compliance with the principles of criminaliza-tion, such as the relative prevalence of the act, compliance with historical succession and modern foreign expe-rience.