Criminal Law Doctrine Research Articles

Debatable issues of the definition of the concept of reasonable risk in the criminal law doctrine

Debatable issues of the definition of the concept of reasonable risk in the criminal law doctrine

Početak izvršenja krivičnog djela u evrokontinentalnom i anglosaksonskom krivičnom pravu

A clear and precise definition of the activity that marks the beginning of the commission of a criminal act (Fr. commencemnt d'exécution), as the boundary between the non-punishable and the punishable stage in the commision of a crime, is of great importance for criminal law. The contemporary criminal legislation and criminal law doctrine are guided by different criteria in determining this boundary. In the European-continental legal system, the definition of criminal attempt is found in criminal law theories, while the criminal legislation in the Anglo-Saxon criminal justice system rely on appropriate tests in establishing the causal link. In this article, the author analyzes the theoretical and legislative solutions in the European-continental and the Anglo-Saxon criminal law on the activity that marks the beginning of the commission of a criminal offense and its delimitation from the preparatory stage.

Uwarunkowania normatywne i systemowe przestępstwa politycznego w Polsce w latach 1944/1945–1997

Political crimes constitute a specific “set” of prohibited acts undertaken by the perpetrator in specific historical and political conditionalities. In the Criminal Penal Code of 19 April 1969 and in the Penal Code of 6 June 1997, the legislator distinguished the factual states circumstances of acts directed against the State that bear the features of punishable acts of a political nature. After 1944/1945, the concept of “counter-revolutionary crime” was developed in the doctrine of communist criminal law. However, after the breakthrough of 1989, in the new social and political reality, it was necessary for the legislator to respond to the acts committed in the previous system, consistent with the legal norms of that time, but classified under new legal and political circumstances as crimes committed on behalf of state authorities or as state crimes. Thus, individual acts, in different circumstances, had a certain political potential and should be treated as political crimes.

Prostytucja, usługi seksualne i przestępstwa okołoprostytucyjne w prawie karnym – próba uporządkowania pojęć

The aim of the research presented in the article is to analyse the term “prostitution” and “sexual service” and an attempt to transfer the results of this analysis to the ground of the so-called prostitution-related crimes in the Polish criminal code. Therefore, the article analyses the content of Articles 203 and 204 CC. The method used was mainly the dogamtic-legal method and the derivational concept of legal interpretation. The main thesis that has been formulated in the article is the lack of a coherent view of the doctrine and jurisprudence of criminal law as to the scope of the concept of “prostitution”. The article also presents the phenomenon of the so-called soft prostitution and doubts that may arise on the basis of prostitution-related crimes in connection with this form of sexual services.

La omisión en el artículo 28(a) del Estatuto de Roma: un análisis a propósito del caso Bemba Gombo

The judicial pronouncements of the case Prosecutor v. Bemba have been the first decisions of the International Criminal Court in matters of responsibility for omission of the superior (article 28 of the Rome Statute). Although this jurisprudence has meant the end of some of the problems raised by the scholarly doctrine of international criminal Law, many other issues have been left unsolved. After a review of the facts of the case and its judicial decisions, this paper proposes an interpretation of the omission responsibility that emanates from article 28(a) of the Rome Statute, giving a leading role to the interpretation of the ‘commission by omission’ of continental law.

The problem of classism and equality in criminal law: socio-legal analysis

The author problematizes the issue of equality of citizens before Criminal Code, as well as the question of classist nature of the criminal delinquency and, accordingly, criminal law. This debate has existed so far in the circle of jurists, different points of view are expressed, arguments are given. Meanwhile, the very understanding of the term “class” as applied to crime or criminal law has changed over time. The paper describes how the discourse on classism has changed, the positions of the Constitutional Court of Russia on equality are presented. Based on the data of judicial statistics, the author points to stable patterns when less severe penalties are imposed for crimes considered to be more serious in law. This phenomenon, which may seem paradoxical in terms of the doctrine of criminal law, has a criminological explanation. In all such cases, the courts respond to the social characteristics of the criminals: the defendants for more serious crimes are those who have used their official position, but these same persons have positive characteristics, they are socialized to the maximum extent possible. And on the contrary, those who committed less serious crimes did not have a someone official position and in general, for the most part, are representatives of lower social strata. The author substantiates the thesis that the theoretical and methodological features of the current criminal law, in particular the mechanisms for differentiating criminal liability and the system of criminal penalties, do not adequately take into account the social characteristics of crime, the actual system of social values in Russian society, and the features of social stratification. The entire system of criminal punishments and the vast majority of sanctions in the articles of the Special Part of the Criminal Code of Russia are based on a certain model of the hierarchy of the system of social values. At the same time, sociological studies make it possible to find that the indicated hierarchy model is divorced from reality, and therefore the criminal law is not an adequate reflection of real social relations. The author proposes to change the methodology of building a system of criminal penalties and sanctions in the articles of the Special part of the Criminal code. At the same time, it recognizes as a utopia the hope of ensuring equality of citizens before the law by establishing common and identical scales for all with a universal gradation of the severity of criminal penalties, since they contradict social reality.

Цифровой объект преступления

The study aims to analyze the transitional provisions of the digital era and their adaptation to the existing criminal law realities, to determine the signs of a digital object of crime and the main question of whether such digital objects are protected by the criminal law of the country. The transition of economic relations to electronic services and social networks was the reason for the transformation of crime from real to virtual and led to the emergence of the term “digital crimes” in the science of criminal law, which requires a conceptual justification of the concept of a digital object of crime, to which the author, in a highly specialized sense, refers social relations that develop upon the turnover of digital financial assets, virtual assets and cryptocurrencies. After digital technologies have turned into general-purpose technologies affecting all sectors of the economy and society, the usual criminal-legal approach to determining the object of encroachment has become unnecessarily blunt, since the criminal law contains a sufficiently large number of elements of crimes referring to various kinds of normative legal acts regulating virtual legal relations. At the same time, such legislation is vague and does not solve law enforcement issues. During the preparation of the article, formal-logical methods were mainly used for the analysis of socio-legal phenomena. The author draws attention to the fact that social realities require the defining of the boundaries of secure communication in the digital and information spheres, the subject and mechanisms of its legal support and protection. At the same time, the definition of the digital object of crime is justified in the context of classical theories of the object of crime, innovative trends, and actualization of the doctrine of criminal law. Based on the conducted research, the author comes to the conclusion that the axiology of the digital object of crime caused by public attitude to it obliges the state to consolidate it as a social value and put it among those protected by criminal law, including them in the list of objects of civil rights. The digital object of crime is socially significant values and benefits of subjects of virtual property relations that develop in the sphere of turnover of digital financial assets, virtual currency and cryptocurrencies, subject to criminal protection, which the guilty person encroaches on, wishing to cause damage to their owner. The concept of the digital object of crime proposed by the author in this regard is a timely and relevant solution to a number of problems of the qualification of digital crimes.

Problems of juvenile criminal liability

Despite many years of discussion by scientists and practitioners, the issue of juvenile criminal liability remains relevant today. In the criminal legislation of the Soviet period, the peculiarities of the criminal responsibility of minors were regulated not by an independent institution, but by separate norms of various institutions of Criminal Law (chapters on crime, on punishment, on sentencing and on release from punishment, on compulsory medical and educational measures). With the adoption in 1996 of the Criminal Code of the Russian Federation, the regulation of juvenile criminal liability changed both in form and in content, which led to the appearance in the criminal law doctrine of heated discussions concerning the validity of certain legislative decisions. They have not stopped to this day. The article examines the effectiveness of measures of criminal law impact on juvenile criminals, proves the need to reduce the age of criminal responsibility for certain types of crimes, as well as the need to expand the application of criminal penalties not related to imprisonment to adolescents.

НАКАЗАНИЕ В УК РФ И РОССИЙСКОЙ УГОЛОВНО-ПРАВОВОЙ ДОКТРИНЕ: ПОНЯТИЕ, СИСТЕМА И КЛАССИФИКАЦИЯ

This article outlines the core tenets of the Russian criminal law doctrine in treating punishment as a means of prosecution. With an account of the inconsistent interpretations of punishment offered by Russian criminal law scholars, a critical analysis of its legislative definition was carried out. A special focus was laid on the key features of the list of punishments set out in the Criminal Code of the Russian Federation as a legally established and hierarchically ordered system of criminal penalties for deciding on the nature and intricacies of the defendant’s criminal liability, as well as possible commutation and remission. With this approach, certain types of punishment can be studied for their specific character and classified on various grounds delineated in the Criminal Code of the Russian Federation and professional literature. The obtained results also shed light on such a topical issue of today’s Russian criminal policy and procedure as how to distinguish between different types of punishment that imply no social exclusion.

Legal and Axiological Basis for Social Reintegration of Persons Sentenced to Imprisonment and Public Participation in the Process

The article discusses the problem of social reintegration of prisoners, which — despite being raised many a time in the relevant literaturę — remains to be a point of issue. In the light of a recent survey conducted by the Polish Public Opinion Research Centre (hereinafter: CBOS), former convicts are considered by the Polish society as one of the groups of people most at risk of social exclusion. In turn, a report of the Ministry of Justice of 2020, regarding convicted adults, shows that a very large number of people leaving prison return to crime as early as in the first year after being released, which, for obvious reasons, has a negative impact on the internal security of our country. These circumstances encourage one to take a fresh glance at the problem of social reintegration of convicts and to search for additional arguments in favor of extending special support to this group of people. A review of the existing legislation indicates that it allows the principle of individualisation of assistance for the sake of social readaptation of individual convicts to be applied to an unlimited extent. What is strictly limited, however, is the circle of persons who can undertake activities for the social readaptation of prisoners during their imprisonment. The exclusion from the above-mentioned circle of all persons validly convicted of intentional offences is unjustified, and with regard to those members of society who, outside the structures of non-governmental organisations, wish to engage in activities for the social readaptation of convicted persons is downright unlawful, as it is contrary to higher-order legal acts. An in-depth analysis of the law in force leads to the conclusion that argumentation for not treating this social group differently from other individuals most at risk of social exclusion can be found in the constitution itself. On the other hand, a review of lower-order legal acts leads to the observation that since our country's accession to the European Union there have appeared both new measures and additional reasons, different from those traditionally identified in the doctrine of executive criminal law, for investing in any human capital in need of support, including persons sentenced to imprisonment.

«Connection» in the criminal law: issues of understanding and application

The authors in the article touch upon the issue of a uniform understanding of the terminological apparatus, in particular, the sign of conjugation used in the construction of criminal law norms. On the basis of the analysis of the norms of the criminal law, groups of crimes are distinguished in which the legislator uses the investigated feature, depending on its functional purpose. The study pays special attention to the issues of understanding the conjugation in the construction of a single complex crime, where, with its help, the legislator discloses and emphasizes the connection between a socially dangerous act and a mandatory sign of the objective side of a crime. Based on the results of the analysis of law enforcement practice, as well as the doctrine of criminal law, the authors come to the conclusion that the term conjugate is synonymous with the phrase perfect with application. In this connection, it is proposed in the criminal law in the constructions of single complex crimes to replace the use by the legislator of the sign conjugation with the synonymous phrase committed with application.

EFFECTIVENESS OF CRIMINAL PUNISHMENT IN THE FORM OF COMPULSORY LABOR

The article is devoted to the analysis of the issue of effectiveness in relation to criminal punishment in the form of compulsory labor. The presented research is aimed at eliminating gaps in the current legislation. The purpose of the study: to analyze the modern understanding of compulsory labor as a type of criminal punishment. Summarize and analyze statistical data, law enforcement practice. To investigate controversial issues not resolved in the criminal law doctrine. Methodology and methods: the article uses both general scientific methods of analysis, synthesis, deduction, induction, and the method of interpretation of legal norms. Conclusions: based on the analysis of the points of view formulated in the theory of sciences of the criminal law cycle, legislation and empirical materials, the author formulates conclusions about the content of the concept of "effectiveness" in relation to criminal penalties in general and mandatory work in particular. In addition, the author identifies problems of a theoretical and applied nature related to the application and execution of the analyzed punishment.

«Use of office position» when committing fraud: problems of application

The authors in the article consider the problems of establishing the qualifying feature use of official position when committing fraud. Based on the analysis of the doctrine of criminal law, clarifications of the highest court, materials of specific judicial practice, a circle of subjects related to persons using their official position is determined, as well as the procedure and mechanism for using official position in fraud. According to the results of the study, it is proposed to include in the current resolution of the Plenum of the Supreme Court of the Russian Federation On judicial practice in cases of fraud, misappropriation and embezzlement additional clarifications that reveal the understanding of the content of the sign use of official position. The authors propose to expand the understanding of the subject of official fraud. Such provisions will promote uniformity in law enforcement and helpavoid qualifying fraud using official position errors.

Extension of the Probationary Period for a Conditionally Convicted Person: Issues of Theory and Practice

The fact that a person serving the suspended sentence avoids the duties, as well as commits some administrative offenses determines the presence of prescriptions in the criminal law that regulate responsibility for such unlawful behavior. As one of the consequences of committing a misdemeanor, along with the cancellation of the suspended sentence, is the extension of the probationary period. Meanwhile, in the process of assessing both the very fact of deviant behavior and the need to apply adequate response measures significant problems arise that do not have a uniform solution, neither in science nor in judicial practice. On the basis of the provisions of the current criminal and penal legislation, a documentary study of materials of judicial practice, a critical assessment of the achievements of the criminal law doctrine, the article proposes a solution to problem situations, proves the need to exclude from the list imposed by the courts of some unnecessary in the author’s opinion duties that are not directly provided by criminal law.

Debatable aspects of constructing construction of corpus delicti in the sphere of economic activity (Chapter 22 of the Criminal Code of the Russian Federation)

The article analyzes the features of the regulation of crimes in the field of economic activity with formal, material and truncated structures of the compositions in the 1996 Criminal Code of the Russian Federation. The author notes that the presence in Chapter 22 of the Criminal Code of the Russian Federation of a significant number of criminal-legal prohibitions containing a formal type of structure of a crime is criticized in the doctrine of criminal law and does not always meet the rules of criminalization of a socially dangerous act and the needs of law enforcement practice. The absence of signs characterizing the economic consequences (damage, avoidance of losses, etc.) in many dispositions with a formal structure does not allow us to speak of the presence of the level of social danger necessary for criminalization of the illegal behavior of economic entities. A number of crimes, in our opinion, should be legally transferred to the category of administrative offenses. The author notes that when designing complex alternative compositions, one should carefully select the necessary features with a homogeneous nature and level of public danger. Such alternative signs should be used in a situation where it is impossible to use abstract linguistic terms covering all the signs listed in the disposition. You should also avoid including false signs in alternative constructions of dispositions: repetitive, unreasonable criminologically, intersecting with other elements of crime, etc.

Problem of criminal legal qualification of domestic violence in law enforcement practice

Domestic violence is a phenomenon that can take the form of a socially dangerous act and be qualified as a crime under Art. 126-1 of the Criminal Code of Ukraine and other articles of the Criminal Code of Ukraine. It is the correctness of the criminal legal qualification of domestic violence that became the subject of our study. 
 The lack of systematic interpretation of Art. 126-1 of the Criminal Code of Ukraine leads in practice to the fact that the courts decide completely differently on the qualification of actions of a person. After all, domestic violence can be a manifestation of both an administrative offense and a criminally punishable act. That makes it impossible to further apply the restrictive measures of a criminal legal nature, enshrined in Art. 91-1 of the Criminal Code of Ukraine. Such situation has already become the basis for resolution in the order of review by higher courts and formation of a position on the most problematic aspects by the Supreme Court of Ukraine. In particular, in order to avoid the prohibited double conviction or punishment, the proceedings must be combined on a comprehensive basis and form a single whole. This means not only that the goal and the means used to achieve it must complement each other in nature and be linked in time, but also that the possible consequences of such legal response to appropriate behavior must be proportionate and predictable. for the persons to whom they relate. 
 Thus, the purpose of our study is to form a list of issues for the correct criminal legal qualification of actions under Art. 126-1 of the Criminal Code of Ukraine, for the correct separation from the administrative offense under Art. 173-2 of the Code of Administrative Offenses, as well as from other criminal offenses related to domestic violence. The task is to study the conclusions of the Supreme Court of Ukraine, to analyse the case law, to analyse the research conducted by non-governmental international organizations, as well as to analyse the positions of the doctrine of criminal and criminal procedure law on this issue.

CHARACTERISTICS OF THE CONSTITUENT ELEMENTS OF A CRIMINAL OFFENCE – PERSECUTION

From January 1, 2018, amendments to the Criminal Law, which provide criminal liability for the persecution of a person, came into force in Latvia. The constituent elements of persecution are defined as a specific form of violence.The aim of the paper is to describe the constituent elements of persecution based on the theory and practice of criminal law. During the study, the author provides a framework of the criminal law theory and outlines the elements of the persecution. The object of the study is the criminal relations, which arise from the persecution of another person. The subject of the study is the criminal legal framework to be followed for the determination of criminal liability. The following legal interpretation methods and approaches have been used in the study: grammatical, systematic, teleological, and historical, as well as analytical method for analysing doctrine and practice of criminal law. Doctrines of criminal law, national legislation, and the sources of legal literature relevant to the aim of the paper have been in the study, too.The analysis carried out leads to the conclusion that persecution covers a wide range of socio-psychological behaviour that manifests in the sacrifice’s victimization and specific harm caused to him/her. Persecution is an active illegal, threatening activity in the form of repeated or lasting tracking, surveillance of another person, expressing threats or unsolicited communication with such a person, if victim have had reasonable grounds to fear for their safety or the safety of their relatives

The Nature of the Institution of Confiscation of Property and its Application

Legislative reform in respect of forfeiture, having returned it in 2006 in the Criminal Code of the Russian Federation, but in an altered status – other measures of a criminal-legal nature – after its exclusion in 2003 as a form of punishment, made a confiscation as one of the most difficult problem and controversial in the doctrine of criminal law. This is due not only to the attribution of confiscation of property to the category of other measures of a criminal-legal nature as in itself still insufficiently defined and highly controversial, but also by the inter-sectoral nature of the problem of confiscation, regulated not only by the norms of criminal, but also by criminal procedural legislation, as well as interconnected with measures of civil law – the return of property to the rightful owner, and compensation for any damage. Understanding the complexity of the legal nature of the confiscation of property lead to quite frequent changes in the Chapter 151 of the Criminal Code of the Russian Federation (19 of federal laws on amendments), as well as cause a lot of questions of their use in practical lawyers. This is evidenced by the resolution adopted by the Plenum of the Supreme Court of the Russian Federation of June 14, 2018 No. 17 «On some issues related to the use of confiscation of property in criminal proceedings». The target of this article is to study the confiscation of property as another measure of a criminal-legal nature by resolving theoretical and applied issues of the application of Chapter 151 of the Criminal Code of the Russian Federation. An important role in the research process was played by work on the problems of other measures of a criminal-legal nature, confiscation of property, as well as published court practice. The methodological basis of the study were the principles of the dialectical method of cognition, as well as general scientific and private scientific methods (sociological, system-structural and formal-logical) methods. In the proposed publication, based on the analysis of special scientific literature and legal positions of the Supreme Court of the Russian Federation, such complex issues as the legal nature of confiscation in terms of its generic and specific characteristics, correlation with criminal punishment and criminal liability are considered, and specific recommendations are given on topical issues of application of the Chapter 151 of the Criminal Code of the Russian Federation.

Habeas corpus w Polsce oraz w niektórych państwach kręgu common law. Analiza prawnoporównawcza

In their article, Przemysław Krawczyk and Bartosz Łukowiak discuss the issue of the habeas corpus procedure. On the basis of a comparative legal analysis, they present a model of the functioning of this institution in Poland and in selected countries whose legal code is based on common law. Krawczyk and Łukowiak discuss in detail, among other things, the scope and the subject matter of this mode and the catalogue of guarantees associated with it. Their research has made it possible to compare the most important similarities and differences in the functioning of the habeas corpus privilege in the Polish legal code and in common law. This, in turn, has allowed them to assess the accuracy of some of the solutions known to the Polish criminal procedural law. This article contains extensive references to the views expressed on this mode both in the Polish and the Anglo-Saxon doctrine of the procedural criminal law and to the case law of the European Court of Human Rights and the United States Supreme Court.

SYSTEMATIZATION AND SUBSTANTIATION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF JUVENILE CONVICTS: THE PENAL ASPECT

The article provides the substantiation and systematization of the basic constitutional rights and freedoms of juvenile convicts who are, by court decision, in places of confinement. First of all, the author is determined with such concepts as status, (social) status of a convicted person, and comes to the following conclusion that in the theory of law and the doctrine of criminal executive law in Russia, these concepts are presented as equivalent. In its most general form, the legal status of convicted juveniles is the position of convicts regulated by the norms of various branches of law while serving a criminal sentence of imprisonment. The foundations of the legal status of convicted juveniles are enshrined in international legal acts, such as: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and other international sources rights. Thus, under the legal status (status) of convicted juveniles, the author defines a set of legal elements (duties and rights, legitimate interests and legal restrictions) expressing the specifics and determining the content of the position of convicts while serving a sentence of imprisonment in an educational colony of the Federal Penitentiary Service of Russia. Based on the results of theoretical, methodological and empirical research, the author introduces into scientific circulation such a concept as the Educational Center of the Federal Penitentiary Service of Russia. Conclusions are drawn, and the modernized infrastructure of the Russian penal system is determined. The article was prepared in the scientific specialty of the Higher Attestation Commission of the Ministry of Science and Higher Education of the Russian Federation: 12.00.08 - “Criminal law and criminology; penal law. The presented material in the publication does not contain information related to state secrets of the Russian Federation.