Articles

The article covers the issue of the criteria that the legislator can use when choosing acts punishable in the administrative-legal order for the construction of criminal-legal norms with administrative prejudice. It is shown that the line between administrative offenses and criminal acts is blurred (including due to the expanding use of administrative prejudice by the legislator). Historical examples of the construction of compositions with prejudice in domestic legislation are given, possible reasons for the absence of such norms in the first years of the Criminal Code of the Russian Federation of 1996. Decisions of the Constitutional Court dated 10.02.2017 No. 2-P and dated 08.04.2021 No. 11-P are analyzed from the point of view of such criteria. Conclusions are formulated and substantiated about the relevance and effectiveness of “objective” public danger as a basis for criminalization, as well as about the incorrectness and danger of some doctrinal and law enforcement proposals to evaluate the dangerous inclinations of a person as a basis for criminalizing acts using administrative prejudice. It seems that the use of “subjective” social danger in the construction of elements of crimes is contrary to the principles of legality, guilt and justice. Its use brings the legislative trend towards the expansion of administrative prejudice closer to the provisions of the theory of the dangerous state of the individual, which is based on completely different principles.

The article examines the problem of errors made by the investigative and judicial authorities in the qualification of crimes considered in a special procedure for making a court decision (Chapter 40 of the Code of Criminal Procedure of the Russian Federation). The author takes as a basis the definition of the qualification of crimes and qualification errors by the professor of Moscow University N.F.Kuznetsova. The contribution of N.F.Kuznetsova in the development of the problem of qualifying errors, which consists, in particular, in considering the corpus delicti as the main tool for qualifying a crime, in classifying the types of qualifying errors, in the proposed methodology for determining the number of these errors. In the main part of the article, using the materials of judicial practice, individual law enforcement errors made in the qualification of crimes considered in a special order are analyzed. The author of the article comes to the conclusion that the largest number of overturned sentences is associated with the wrong choice of the criminal law norm or its incorrect interpretation. Particular attention is paid to the problem of qualifying crimes, the composition of which includes the so-called evaluative features, the content of which is not disclosed in the criminal law and is established by the law enforcement officer depending on the actual circumstances of a particular criminal case. The author of the article believes that in such cases, priority should be given to the general procedure for considering a criminal case. Conducting a full-fledged judicial investigation, although it does not guarantee the correct final qualification of the crime committed and will not completely eliminate qualification errors, however, it can minimize them to a large extent.

In the article, based on the understanding of N.F.Kuznetsova’s category “guilty of a person” as “committing a crime by a person”, “criminality of an act committed by a person” is solved, among other things, the applied problem of choosing between competing norms of the Special Part of the Criminal Law, when the objective side of the act is fully described in different norms of the Special Part, the ratio of which as a general and it is impossible to install a special one. The use of a purely procedural presumption in dubio pro reo in the substantive aspect, that is, in resolving qualifying problems, is substantiated: since the recognition of a person committing a crime is not only proof of the actual circumstances of the act, but also its qualification, that is, “establishing compliance in the deed with the signs of a socially dangerous act on the grounds of the corpus delicti provided for in the norms of the General and Special Parts of the Criminal Code, with a conclusion on the application of one or another article of the Code”, the above constitutional provision (Article 49 of the Constitution) should be interpreted not only in the procedural, but also in the substantive aspect. With this in mind and proceeding from N.F.Kuznetsova’s category of guilt a) the conclusion about the fundamental possibility of using the rule “irremovable doubts about the guilt of the accused are interpreted in favor of the accused” as a tool for criminal legal qualification, and b) recognizing the presence of defects in legislative technique, due to which various criminal law norms infringing on one and the same direct object, similarly describe the corpus delicti to be imputed to the guilty person, it was proposed when deciding on which article to qualify the phrases expressed publicly or posted on leaflets posted in public places, aimed at convincing other persons of what is needed, in particular, kill representatives of a certain racial, social, etc. groups precisely because the latter belong to such a group, choose a norm with a milder sanction, which is Part 1 of Art. 282 of the Criminal Code of the Russian Federation, if the act was committed without signs qualifying the relevant act.

The special issue of the Bulletin of Moscow University, ending in 2022, is dedicated to the anniversary date — the 95th anniversary of the birth of the head of the Department of Criminal Law and Criminology of the Faculty of Law of Moscow State University, laureate of the USSR State Prize, Honored Scientist of the RSFSR, Honored Worker of Higher Education, Honored Professor of Moscow State University, member of the International Association of Criminal Law Ninel Fedorovna Kuznetsova (1927-2010).