Russian Criminal Legislation Research Articles

Строение Особенной части Уголовного кодекса Российской Федерации: современность и перспективы

The aim of the presented work is a legal analysis of the structure of the Special Part of the Criminal Code of the Russian Federation from 1996 to 2020 in order to identify trends in contemporary criminal law construction and prospects for the structuring of Russian criminal legislation. We have studied individual structural components available in the Special Part of the Criminal Code of the Russian Federation (such as chapters, sections, articles, as well as special attention to the dispositions, sanctions and notes to the articles of the Special Part of the Criminal Code of the Russian Federation) in the context of the modern development of socio-economic and political relations. Particular attention is paid to the methods of legislative technique in the construction of the Special Part of the Criminal Code of the Russian Federation. The tendencies typical of the modern criminal legislation were revealed. Attention was drawn to the presence of certain differences in the construction of the Soviet criminal codes and the current criminal law. Opinions existing in doctrine on the problem of construction of the modern criminal law of Russia are given. It is shown that the systematic ongoing permanent changes in the content of the articles of the Special Part of the Criminal Code of the Russian Federation leads to a significant violation of the logic of the criminal law system of Russia as a whole, as well as entails the creation of irreducible inconsistencies and contradictions within the current criminal law. The lack of a holistic understanding of the basis and content of the criminal law leads to haphazard changes and transformations, which create chaos inside the criminal law document. The paper argues that the only way out of the current situation is the development of a unified concept of structuring the criminal law of the Russian Federation. The concept must be based on historical experience, on prevailing domestic political, economic and social conditions, on international legal agreements, on criminological foundations, on modern achievements in legislative technique and, of course, on the latest doctrinal research. In the first quarter of the XXI century criminal and legal doctrine has carried out a profound scientific synthesis in the structure and content of the General and Special parts of the criminal law and created all the necessary groundwork for the development of a new Criminal Code of the Russian Federation or for the proposal of a new edition of the existing criminal law. The authors declare no conflicts of interests.

Политическая нелояльность и военные преступления Прибалтийских дворян в годы первой мировой войны

In the Soviet historiography of the First World War, a false opinion was formed that representatives of the large local nobility who had “Germanic roots” (as a rule, natives of Germany or persons who had Russian and German citizenship) were a category of persons politically disloyal to the Russian autocracy. They allegedly saw their national-patriotic mission in acts of overt and covert sabotage of Russia's military security in the Baltic states - from hanging the national flags of Germany on the roofs of their estates to creating favorable conditions for the invasion of “Teutonic knights”.Another myth that can be traced in some works of modern Russian historians is that all Baltic barons of German origin, in the conditions of an armed clash between Russian and German military and naval forces, remained loyal to the Tsar and the Fatherland (Russian Empire) to the end.In this article, the author set himself the goal of reconciling the existing historical differences and contradictions, showing an objective picture of front-line political life, the central figures of which in the Baltic provinces (at different times, some districts of Courland and Livonia) were German barons. For this, an attempt was made to trace the evolution of the “enemy image”, which was embodied in the “Eastsee nobles”. It was concluded that their initial stereotypical perception and misinterpretation of the border threat was based only on the speculation of police and military officials.This and other (including those opposite in meaning) conclusions were based on archival documents discovered and introduced by the author into scientific circulation. Initially, the counterintelligence officers of the Northern Front did not have a clear idea of the hostile intentions and, moreover, the illegal activities of the Baltic barons. However, with the beginning of the “Great Retreat” of the Russian armies, some of them were faced with a difficult moral choice: Whom should they be loyal to and serve - their ancestral homeland or their homeland (Russia)? As a result of the preferences given, the overwhelming minority of the nobility, as follows from the correspondence on the counterintelligence line, committed crimes that were qualified by the current Russian criminal legislation as treason. And, at the same time, due to the fact that none of the criminally prosecuted, first of all, Courland barons ended up in the dock, and the judicial authorities never passed a single guilty verdict, we cannot consider them criminals.

About some trends in the improvement of Russian criminal legislation

About some trends in the improvement of Russian criminal legislation

The historical path of formation and development of postponement of serving a sentence for drug addicts in the domestic Russian criminal legislation

The historical path of formation and development of postponement of serving a sentence for drug addicts in the domestic Russian criminal legislation

German Experience of Terminating Criminal Prosecution with the Imposition of Duties and Regulations on the Accused in the Context of the Russian Draft Law on Criminal Offence

The second attempt of the Supreme Court of the Russian Federation to introduce the concept of a criminal offence into Russian criminal and criminal procedure legislation widens the non-rehabilitating grounds for the termination of a criminal case or prosecution with the imposition of other criminal law measures: it is suggested that, in addition to a court fine, community work and partially paid work should also be introduced. This leads to certain problems, including problems with the presumption of innocence and the observance of the principle of justice. The authors turn to the German experience for a better understanding of the situation. Germany faced similar problems much earlier, when § 153а was introduced in the Criminal Procedure Code of the Federal Republic of Germany (CPC of the FRG); it provided for an opportunity to terminate criminal prosecution for criminal offences on the grounds of expediency with the imposition of duties and regulations on the accused, which are akin to criminal law measures under draft law № 1112019-7. Taking into consideration the theoretical approaches developed in Germany, the practice of the Constitutional Court of the FRG and the Supreme Court of the FRG, the authors examine the goals of introducing § 153а in the CPC of the FRG, the practice of its implementation, as well as the problem of terminating criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused connected with the observance of the Constitution of the FRG, the presumption of innocence, the principles of justice, certainty, equality before law; they analyze the controversial legal nature of duties and regulations under § 153а in the CPC of the FRG. According to German criminal procedure law, the termination of criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused is a right, and not a duty of the corresponding officers and agencies as it is, in fact, an alternative to criminal prosecution which makes it possible to terminate it at a certain stage when there are all the necessary legal grounds for criminal prosecution.

Promotion of Justice as an Independent Criminal Procedure Function

The article proves the necessity of involving the persons assisting the parties and the Court into criminal proceedings. The author analyzes the promotion of justice as an independent criminal procedure function under Chapter 8 of the Criminal Procedure Code of the Russian Federation, which is carried out by both the participants of criminal proceedings and by other subjects of criminal law relations who do not have an independent procedural status. The conducted social and legal analysis made it possible to state that the development of the idea of the rule of law requires individuals to obtain a correct understanding of the organization of the modern society, its development trends, and the necessity of acquiring due legal awareness. The understanding of legal awareness varied throughout the history of our state but what remained unchanged were the ideas that it can be influenced and that it determines the development of law and the law enforcement itself. Citizens with the due level of legal awareness are ready to promote justice, which testifies to their high level of social development, a desire to be involved in law enforcement work, to bring justice and ensure legality of procedural decisions. The author shows that criminal proceedings in Russia require facilitation, but the majority of people are not ready to provide it for a number of reasons, which proves the need for a detailed analysis of promoting justice in the modern Russian criminal process. The conducted research stresses the theoretical and practical inadequacy of the three-part system of criminal procedure functions enshrined in the current Russian criminal procedure legislation. The author examines the possibility of singling out the promotion of justice as an independent criminal procedure institute necessary for making lawful, well-grounded and comprehensive procedural decisions by officials and state bodies. The author concludes that it is necessary to introduce changes in the Criminal Procedure Code of the Russian Federations which will foresee the possibility of renaming Chapter 8 of the Code. Besides, having analyzed the concept of «justice», the author presents his position of what should be understood as the promotion of justice.

On the Effectiveness of the Prosecutors Role in Pre-Trial Proceedings: the Position of the Legislator and the Opinion of the Law Enforcer

The author examines the problems connected with the position of the prosecutor in a criminal process from the standpoint of the effectiveness of the prosecutor’s work. Specifically, using statistical data on the situation with the legality and the quality of preliminary investigations and the results obtained by other Russian scholars who researched this issue, the author shows that the transfer of investigators from the jurisdiction of the prosecutor’s office to a newly created independent Investigation Committee of the Russian Federation, the transfer of the right to the procedural guidance of the investigation from the prosecutor to the head of the investigation body, revoking the prosecutor’s right to coordinate the decision of the investigator, inquirer, or an inquiry body to initiate a criminal case, and in general the right to do it — all of these, in fact, improved the effectiveness of the supervisory function and, consequently, improved the legality and quality of preliminary investigations. At the same time, the author presents his own view on the directions of improving the effectiveness of the role of the prosecutor in the pre-trial proceeding, which should ensure a general sustainable development of Russian criminal procedure legislation.

Properties of Criminal Procedure Presumptions

The process of proving has always been and today still is the central problem of criminal proceedings, and most aspects of modern criminal procedure activities are connected with it. The cognitive character of the proving process presupposes the use of multiple methods, the most complex and significant of which is the method of presuming. This method of legal technique is well represented in the Russian legislation. At the same time, legal science and the theory of criminal procedure law, which have multiple definitions of legal or lawful presumption reflecting various aspects of the concept under consideration, do not contain a unified approach to understanding its essence. This situation distorts the meaning of the definition of legal presumption and leads the situation when some authors and practicing lawyers use the word “presumption” to refer to legal norms that are not, in fact, legal presumptions. The authors describe the concept, meaning and key elements of the contents (features) of legal presumption as a method of legal technique that influenced the formation and development of modern Russian criminal procedure legislation.

PROBLEMS OF APPLYING OBJECTIVE SIGNS OF THE CORPUS DELICTI PROVIDED FOR IN ARTICLE 242 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION

The article comments on the criminal legislation of Russia, which provides for liability for the illegal production and trafficking of pornographic materials or objects and the practice of its application. Recently, illegal production and trafficking of pornographic materials and objects (Obscene Publications), as a type of criminal activity, have acquired a qualitatively new look. It can be explained by the trend towards an annual increase in registered IT crimes (committed using information and telecommunications networks (including Internet)). The use of such means significantly complicates law enforcement, primarily in connection with the criminal legal assessment and qualification of such acts. In article there are analyzes the objective features (actus reus) of the corpus delicti that determines the basis of criminal liability for the illegal production and trafficking of pornographic materials or objects. One of the problematic situations, according to the authors, is considered, related to the practice of applying Article 242 of the Criminal Code of the Russian Federation. The authors' conclusions are based on the analysis of the provisions of the current criminal legislation of the Russian Federation and the practice of its application. The rules of international treaties were considered, as well as the practice of applying the rules of civil and administrative law, including those related to the concepts of “publicity” and “indefinite range of persons”, were considered.

Совершенствование процессуального порядка проверки поводов и оснований для возбуждения уголовного дела

Introduction: the range of tasks facing the stage of initiating a criminal case is quite diverse, which leads to different interpretations of their content by the scientists-processualists. The authors of the paper assess the problems of determining the reasons and grounds for initiating a criminal case. The problem considered by the authors of the manuscript is relevant because of their insufficiently clear legislative definition and their related ambiguous interpretation. The purpose of the study: to identify the problems that hinder the improvement of the procedural order for checking the reasons and grounds for initiating a criminal case. The research objectives: to analyze the points of view of the scientists-processualists about the expediency of eliminating the first stage of the criminal process; to offer some recommendations for transforming the stage of initiating a criminal case. Methods: the methodological framework for the study is represented by a system of methods of scientific cognition, which should include: general scientific, systemic, institutional, and comparative legal. Results: the paper provides an assessment of the position of some researchers specializing in criminal procedure law on the need to eliminate the stage of initiating a criminal case, which the authors of the paper do not share, citing the following arguments: the considered stage of the criminal process acts as a kind of filter that separates the law enforcement agencies from procedural activities for the analysis of information that does not hide the signs of a criminally punishable act; will cause an increase in the burden on investigators and interrogators; the burden on the federal budget will increase due to the procedural costs. Conclusions: considering the possibility of improving the stage of initiating a criminal case, borrowing the experience of the representative countries of the Anglo-Saxon legal system, the authors of the paper conclude that as a result of this, the procedural status of some participants in the criminal process will change, which is alien to the Russian criminal procedure legislation: the replacement of the functions of the investigator by the prosecutor and the court; the exercise of the function of the body of inquiry by the investigator; the acquisition by the defender of the status of the subject of proof on a par with the investigator and the inquirer. It is noted that the attempt of the legislator to give evidentiary value to the information obtained during the preinvestigation check as an independent reason for initiating a criminal case was not successful.

The Development and State of Criminal Legislation on Responsibility for Smuggling Strategically Important Goods and Resources

The paper is devoted to monitoring the development in the Russian criminal legislation of responsibility for the illegal movement of strategically important goods and resources across the customs border of the Customs Union within the EurAsEC or the State border of the Russian Federation. At the same time, the author argues the correctness of the indication in the disposition of Art. 226.1 of the Criminal Code of the Russian Federation a State Border as a place of commission of the crime under consideration. The author provides a detailed list of strategically important goods and resources, since the establishment of the subject matter of a crime makes it possible to qualify the offense and differntiate criminal smuggling from smuggling the responsibility for which is envisaged only in administrative legislation. The author substantiates the statement according to which this type of smuggling infringes not on public safety, but on relations in the field of economic activity. Therefore, a proposal is made to return the criminal law rule to Ch. 22 of the Criminal Code of the Russian Federation. At the same time, it is proposed to establish criminal liability for smuggling flora and fauna items classified as strategically important goods and resources in a separate article in the Chapter entitled "Environmental Crimes" with due regard to the social danger of this act. The liability should not be related to the value of the goods and resources being moved. Taking into account only the cost of biological resources in their protection under criminal law does not reflect the real social danger of these acts. The need for the protection of biological resources using criminal law instruments is caused not only and not so much by economic preconditions but by the need to preserve rare and endangered representatives of flora and fauna for future generations—the most important components of the ecosystem of the entire planet. The author draws conclusions largely aimed at observing the systematic nature of the criminal law due to the peculiarities of the object of the offence.

Liberalization and Humanization of Criminal Law Policy

The goal of the article is to define modern trends in criminal law policy in the Russian Federation. More thorough research should be carried out in connection with lively scientific discussions on defining the essence of criminal policy and the lack of a universal understanding of the contents and key trends of developing criminal law policy. The author researched two components of criminal law policy which are currently trending in the research community — humanism and liberalization. The author’s own understanding of these characteristics is presented in the article. The author also studied the clauses of the Concept of criminal law policy of the Russian Federation from the standpoint of their correspondence to humanistic and liberal ideas and carried out an analysis of changes in Russian criminal legislation with the aim of identifying modern trends in criminal law policy. The study is carried out for the period of the latest full five years (2016–2020). It is stated that the number of laws aimed at amending the Criminal Code of the Russian Federation, and the number of actually introduced amendments are diverse values. Most changes are aimed at amending the Special Part of criminal law and are connected with criminalization. There is a trend for strengthening the protection of economic interests and public security, which has a rather weak correlation with the widely recognized priority for the protection of the individual, civil rights and freedoms. In general, the analyzed period is characterized by tightening of criminal law policy. The key features of criminal law amendments are their inconsistency, lack of a system or a unified direction. The author concludes that, contrary to the expectations of the public, the humanism and liberalization are manifested very moderately at the current stage of criminal policy’s development, they do not constitute its defining characteristics and challenge its progressive character. One of the promising ways of solving the identified problems is increasing and strengthening the role of criminological research in the development of criminal law policy.

The socio-legal nature of compulsory medical measures in accordance with the criminal legislation of Russia and Mongolia

The subject of this study is the institute of compulsory medical measures.
 Goal. This study involves determining the essence of compulsory medical measures in accordance with the criminal legislation of the Russian Federation and Mongolia, as well as scientific justification of the need to distinguish between criminal liability and other measures of criminal legal influence applied to persons who have committed an act prohibited by criminal law.
 Methodology. The methodological basis of this study is presented by the dialectical method of scientific cognition. In the course of the research, private scientific methods of cognition used in the humanities were also used, namely: in determining the essence of compulsory medical measures inductive, deductive, system-structural and content analysis; in the process of studying the provisions of the criminal legislation of Mongolia on the regulation of compulsory medical measures-a comparative legal method.
 Results. The criminal legislation of the Russian Federation and Mongolia is analyzed, doctrinal studies on the declared topic are studied, the socio-legal essence of compulsory medical measures is formulated and scientifically substantiated.

On legal succession in reconciliation of criminal cases of private prosecution

The subject of this research is the criminal prosecution of cases established by the Part 2 of the Article 20 of the Criminal Procedure Code of the Russian Federation, which is carried out in private capacity and significantly modifies the rights and responsibilities of the parties to criminal proceedings. Pursuant to the general rule, the state authorities and officials do not carry out private prosecution cases. In view of this, close attention is given the procedural activity of private prosecutor, who is vested the right in application of measures of state coercion, but entrusted with responsibility on formulating, proving, and pressing charges in court. Retrospective analysis of the Russian criminal procedure legislation reveals that modern legislation has no legal succession of the centuries-long experience of classifying a range of offences as cases of private prosecution. The author believes that the list of cases of private prosecution can be extended by taking into account the provisions of the Criminal Law and Practice Statute 1864, Regulations of Punishments Imposed by Justices of the Peace, which enables reconciliation of the parties and entails unconditional termination of proceedings in certain categories of minor offences. This would ensure the effective implementation of criminal proceedings, restoration of social and legal justice, and accessibility of justice to general public.

Difficult way of the institution of criminal liability for attacks on the honor and dignity of the person, or problems of targeting

The article is devoted to the institution of criminal liability for attacks on the honor and dignity of the individual. The article, using the historical method, examines the stages of development of this institution and the features of protecting the honor and dignity of the individual from the point of view of the values of a modern democratic state. The author analyses the impact of explicit and implicit criminal policy objectives on the ways to protect the honor and dignity of the individual. Particular attention is paid to the criminalization and decriminalization of libel and slander. The research is aimed at identifying the problems of targeting in changes in the institution of criminal liability for attacks on honor and dignity, when the relevant criminal law norms are replaced by administrative law norms. The author seeks to depoliticize the protection of the personal right to honor and dignity on the basis of the principle of equality of citizens before the law. The current Russian criminal legislation is mainly aimed at protecting the honor and dignity of persons in connection with their social accessories. Within the protective concept of criminal law, the author of the article justifies the conclusion that the right of anyone who has suffered from slander or insult to achieve the truth and state censure of the perpetrator is guaranteed. Such a view will also be interesting to researchers of the criminal process.

Combined (Visual-Verbal) Investigative Actions: Legal Nature and Significance for Proof

Russian criminal procedure legislation provides for investigative actions based on a combined combination of visual and verbal perception. At the theoretical level, to date, some problems of the evidentiary significance of the results of these investigative actions and their place in evidence in a criminal case have not been solved. The aim of the study is to develop an optimal theoretical model for using combined investigative actions in proving the results. The objectives of the study are: to analyze the legal nature of these actions, to distinguish elements of visual and verbal perception in their structure, to identify the possibility of removing material objects during the investigative actions under consideration, to establish the possibility of announcing the protocols of investigative actions in a court hearing. The study is based on the dialectical-materialistic general method, which involves the study of phenomena in systemic communication and totality, as well as on general scientific methods of analysis and synthesis, induction and deduction, and private-legal methods. Results of the Study. A distinction was made between the ratio of visual and verbal components in various investigative actions. Based on this, it was concluded that material objects could be removed as part of the verification of evidence on the spot, and this was impossible during the investigative experiment and verification of evidence on the spot. It is stated that the information provided in the course of conducting the investigated investigative actions verbally does not relate to the testimony. The results of all the indicated investigative actions in terms of the types of evidence are minutes and are subject to announcement at the court hearing, regardless of the existence of conditions established by law for the announcement of evidence. The results of combined investigative actions have important evidentiary significance in the paradigm of a mixed type of criminal process. The author believes that this type of proceedings is optimal, which requires an improvement in the regulatory design of combined investigative actions.

Public danger of bankruptcy offenses in modern Russia

The article aims at studying the Russian criminal legislation on the insolvency (bankruptcy) procedure over the past 15 years. An important indicator of the deterioration of bankruptcy cases is the judicial practice discussed in the article. The main method for studying the issue in question was the statistical method which allows to consider some court cases indicative for Russia and draw certain conclusions about prospects for the development of the Russian legislation on criminal liability for bankruptcy (insolvency) offenses in modern Russia. This scientific article also uses the method of system analysis, the historical method, deduction, induction, etc. The article concludes that bankruptcy abuse is a dynamic and rapidly changing environment due to the constant emergence of new forms of such abuse by the subjects of these legal relations. Therefore, the current legislation is not always able to resolve emerging issues in this area.

Some Aspects of Implementating International Laws on the Rights of the Child in the Criminal Legislation of Russia

The authors examine the theory and practice of the interaction of international law and Russian criminal law in the system of their harmonization and standardization using specific crimes as examples. They also analyze international law norms from the standpoint of the criteria of their effectiveness in protecting the rights of minors in view of their further implementation in Russian criminal legislation. It is noted that a wide spread of different forms of illegal actions against minors is predetermined by the lack of a comprehensive system of protecting the rights of children in international and Russian legislation, the insufficient development of effective methods of detecting and registering different crimes. The authors point out that it is necessary to take into account the positive experience in protecting the rights and interests of children in the criminal legislation of other countries, especially partner countries, which is a vital condition for the success of integrational processes. They state that it is necessary to use a systemic approach in making decisions on criminalizing offenses against minors.

Realization of the Purpose of Criminal Proceedings by the Investigator and by the Defense Counsel: Opposition or Interaction?

The author discusses relationships between the prosecution and the defense during the preliminary investigation of a criminal case. Based on the analysis of contemporary Russian criminal procedure legislation and the links between the criminal procedure theory and criminalistics, the author concludes that it is necessary to single out the following forms of relationships between the defense counsel and the investigator: cooperation and counteraction to the investigation. The author, taking into account existing theoretical views, differentiates between these two concepts using the criterion of the legality of the actions of the sides. Correspondingly, it is suggested that cooperation is the activity of the sides carried out within the framework of the criminal procedure legislation and aimed at the realization of the purpose of criminal court proceedings as stated in Art. 6 of the Code of Criminal Proceedings of the Russian Federation. Using this as a basis, the author attempts to outline the procedural types of such interaction depending on the manner in which the defense counsel participates in proofing a criminal case. Firstly, there is a situation in which evidence is collected directly by the defense council. The author believes that in this case the investigator checks the evidence acting as an independent auditing body in the legal relationships and does not perform the function of the prosecution. Secondly, there is a procedural form of interaction when the defense counsel participates in the collection of evidence carried out by the side of the prosecution.

Relevant issues in determining the quantity of drugs (d-Lysergide, LSD, LSD-25) for the purposes of the Russian criminal legislation

The object of this research is the social relations arising in the sphere of counter-drugs activity. The author outlines the problems of law enforcement in the context of determining the quantity of d- Lysergide (LSD, LSD-25). The scientific community is divided over the conclusions and recommendations on determination of the quality and quantity of LSD for the purposes of criminal legislation. Infringement of the rights of defendants to equal protection is observed. Special attention is given to the existing investigative practice and case law, the results of which allow formulating the key elements of the research. The author carefully examines foreign experience in determining the quantity of the drug d- Lysergide, and reveals similar issues within the Russian legal field. Some authors truly believe that the current regulation contradicts the fundamental principles of the administration of justice, while others offer alternative methods for resolution of contradictions, and this bringing the investigative practice and case law to uniformity, which would prevent the infringement of rights to equal protection. The goal of this research lies in consideration of the problems of determining the quantity of narcotic substance d-Lysergide (LSD, LSD-25), as well as in establishment of the conditions that would prevent violation of the rights of convicts. Based on research competence, the author makes recommendations for improvement of the existing procedure on determination of the narcotic substance under review.