Articles

This article is devoted to debatable issues of qualification of hooliganism. The author analyzes the changes made to Article 213 of the Criminal Code of the Russian Federation, which regulates responsibility for hooliganism, and the practice of its application. The article deals with the problem of distinguishing between hooliganism and crimes committed out of hooligan motives: the author comes to the conclusion that these crimes are distinguished according to the signs of the objective side. The article also touches upon the problem of qualification of hooliganism committed with the use of violence in conjunction with crimes against health: the author comes to the conclusion that when solving this problem, it is necessary to be guided by the rule of competition between the part and the whole. In accordance with this rule, the norm providing for criminal liability for hooliganism covers beatings and intentional infliction of minor bodily harm, therefore, the relevant articles of the Criminal Code of the Russian Federation should not be imputed in conjunction with Article 213 of the Criminal Code of the Russian Federation. The article analyzes the problem of distinguishing between hooliganism on railway, sea, inland water or air transport, as well as on any other public transport (paragraph 1 of article 213 of the Criminal Code of the Russian Federation) and actions committed out of hooligan motives that threaten safety operation of vehicles (Article 267.1 of the Criminal Code of the Russian Federation). The author comes to the conclusion that the main problems associated with the qualification of hooliganism are caused by legislative errors in the construction of this criminal law norm.

The article deals with issues related to the legal nature and ethical component of the institute of de minimis infractions provided for in Part 2 of Article 14 of the Criminal Code of the Russian Federation. Using Russian and foreign philosophical and legal concepts, the author substantiates the conclusion about the close connection between de minimis infractions and the Roman natural law maxim summum jus, summa injuria (“The rigor or height of law is the height of wrong”). It is noted that the essence of the institute of de minimis infractions consists in the refusal of the law-enforcer to implement criminal repression in order to achieve the requirements of justice of a particular case, contrary to the strict prescription of the norm provided by the article of the Special Part of the criminal law. On the basis of the analysis of practice of Russian courts in criminal cases, the article demonstrates that the mechanism established by part 2 of article 14 of the Criminal Code is applied in case of conflict between standards of morality and criminal-law prohibitions. In order to overcome this conflict, the law-enforcer analyses the act for the presence or absence in it of a sign of public danger, i.e. actually assesses the legitimacy of criminalization of an act in a particular case, in other words, the law-enforcer acts as if he were the legislator.

The article analyzes the peculiarity of the violation of sanitary and epidemiological rules in the metropolis in the criminal law context. Various approaches to the concept of “megapolis” in the context of the Russian legal reality are considered through the allocation of its properties and features, as well as differentiation with the term “agglomeration”. The “criminological paradoxes” of crime in a megalopolis are deduced, among which the highest possible rates with relatively low relative crime rates and a reduction in crime when its limit is reached, and the reasons for their occurrence are called. Examples of application in judicial practice in the period from 2011 to 2022 of Article 236 of the Criminal Code of the Russian Federation are given, in particular, focusing on the crime scene to identify the features of the geography of violations of sanitary and epidemiological rules. The specifics of responsibility in establishing violations of sanitary and epidemiological rules in the legislation of the Russian Federation, presented not only by the Criminal Code of the Russian Federation, but also by the Administrative Code of the Russian Federation and the subjects of the Russian Federation, are noted. The article analyzes the practice of bringing to criminal responsibility for committing violations of sanitary and epidemiological rules of persons with a new coronavirus infection COVID-19. Based on the decisions of law enforcement, the authors conclude that violations of sanitary and epidemiological rules are more and more often committed in small towns and villages, and the violations themselves are mostly established in the field of catering.

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).