Humanization and liberalization of the criminal legislation of the Russian Federation / Гуманизация и либерализация уголовного законодательства Российской Федерации

Шахбазян Сатеник Врежовна аспирант, кафедра уголовного права и процесса, Северный (Арктический) федеральный университет им. М.В. Ломоносова 163062, Россия, г. Архангельск, ул. Набережная Северной Двины, 17, каб. 1211 Shakhbazian Satenik Vrezhovna Post-graduate student, the department of Criminal Law and Procedure, Northern (Arctic) Federal University 163062, Russia, Arkhangel'sk oblast', g. Arkhangel'sk, ul. Naberezhnaya Severnoi Dviny, 17, kab. 1211 shahbazyan.saten@gmail.com Другие публикации этого автора

Federal Law N 323 adopted on 03.07.2016 contains provisions on decriminalization of crimes such as battery (116.1) and default in paying money for maintenance of children and physically disabled parents (Article 157) and provides criminal responsibility for committing the following acts:

1. Battery by a person, subjected to administrative punishment. According to the Article 116.1 of the Criminal Code of the Russian Federation battery or commission of other coercive actions that cause physical pain but do not entail consequences, specified in Article 115 of this Code, and do not contain elements of crime provided by Article 116 of this Code, by a person subjected to administrative punishment for the same action,

2. Default in paying money for maintenance of children and physically disabled parents. In accordance with Article 157 of the Criminal Code of the Russian Federation default in paying money for maintenance of children and physically disabled parents or disabled children who have come the age, without reasonable excuse in violation of decision of the court or notarial certified agreement by a person subjected to administrative punishment for the same action,

3. Minor larceny, committed by a person, subjected to administrative punishment. Article 158.1 of the Criminal Code of the Russian Federation provides for criminal responsibility for the minor larceny, committed by a person, subjected to administrative punishment for the same action, provided by Part 2 of Article 7.27 of the Code of Administrative Infractions^[1].

Legislative initiative of the Supreme Court of the Russian Federation^[2] aimed at the decriminalization of some articles of the Criminal Code and the translation of crimes that do not have high public danger in the category of administrative offenses, but the repetition of which will be qualified as a criminal.

In addition, the Article 76.2 of the Criminal Code of the Russian Federation allows enacting a basis of release from criminal liability such as release from criminal liability in connection with the infliction of fine to person who has committed a crime of little gravity or average gravity and has compensated for the damage inflicted, or in any other way effected restitution for the damage caused as a result of the crime.

The distinctive feature of the current stage of development of the Russian penal policy is that mitigation of criminal repression and limitation of criminal influence occur mostly due to the establishment and application of different grounds of release from criminal liability and punishment, and to a lesser extent due to the decriminalization of socially dangerous acts^[3].

These amendments to the Criminal Code of the Russian Federation have both positive and negative aspects.

According to the authors of these changes to the Criminal Code of the Russian Federation, decriminalization of these acts and establishment of administrative responsibilities for their commotion will allow to effectively protect individuals and the order of administration from these acts, as well as will give an opportunity to authorities of preliminary investigation to focus their manpower, technical and other resources to the investigation of grave crimes. Furthermore, it will allow eliminating from the scope of the criminal liability over 300 000 people, which, in turn, will favor the positive changes in the social structure of the society owing to considerable reduction in the number of people having a criminal record.

It is mentioned in the explanatory note to these amendments that establishment of criminal liability for battery by a person, subjected to administrative punishment will allow responding appropriately to the facts of domestic violence, unlawful conduct of individuals who are prone to constant threats or systematic commission of acts of violence^[4].

The aim of such changes is the further humanization and liberalization of the criminal legislation of the Criminal Code of the Russian Federation. The initiators of these changes to the Criminal Code have brought the statistical data according to which almost half of criminal cases investigated in the Russian Federation are crimes of little gravity. These data are used by the authors of the legislative amendment to the Criminal Code as an argument in favor of the changes in the Russian legislation. The investigation of non-grave crimes does not allow investigative and judicial bodies focusing on investigation of grave crimes^[5].

The criminal responsibility for battery committed by person subjected to administrative punishment and default in paying money for maintenance of children and physically disabled parents committed by person subjected to administrative punishment will in some extent have a preventive effect and will prevent recommission of such act.

As for establishment of criminal liability for minor larceny, committed by a person, subjected to administrative punishment, it will have an effective preventative treatment since in the difficult economic situation in Russia the risk of growth of crimes related to theft is high.

However, in spite of positive sides mentioned above, there are some disadvantages with such amendments.

According to the Part 2 of the Article 20 of the Code of Criminal Procedure of the Russian Federation the crime provided by the Article 116.1 (battery) of the Criminal Code of the Russian Federation refers to the category of private prosecution and in accordance with the Article 318 Code of Criminal Procedure should be commenced by the justice of the peace by submitting an application from the victim or victim's legal representative. The victim must collect and present evidences in own defense. In addition, the application must meet the requirements of the Part 5 of the Article 318 of the Code of Criminal Procedure and in the case of non-compliance judge may return it for correction. In case of failure to follow this instruction the judge rejects the application. Thus, the complicacy can arise for the victim at initial stage of criminal proceeding, which significantly complicates the victim's access to justice.

The difficulty that may arise owing to establishment of administrative responsibility for the battery, concerns question of application of Article 117 of the Criminal Code, which provides for criminal liability for causing physical or mental suffering through systematic battery or other violent acts, if it did not entail consequences provided in Article 111 and Article 112 of the Criminal Code. Since the objective side of this crime will include actions for which administrative responsibility is provided, this fact could lead to different interpretations by the law enforcement bodies. Currently, the concept of "systematic" includes commission of illegal act three or more times. In this case arising a question: whether the person who has committed battery three or more times and was not subjected to administrative responsibility, will be subjected to criminal liability under Article 117 of the Criminal Code?

Criminal liability for battery and default in paying money for maintenance of children and physically disabled parents should play a crime deterrent role in the modern developed society. There is a point of view that considered changes in legislation will contribute to formation of law nihilism and creation of an atmosphere of impunity^[6].

The argument that these changes are necessary for reduction of the number of persons having a criminal record is unconvincing. The presence of a criminal record is a natural consequence of bringing the person to criminal responsibility, by which the government should try to influence on individuals and protect the rights of other citizens. Moreover, there is a need in manifestation of liberal approach to the victim. Decriminalization of some of the most frequently committed crimes is too easy way out of the situation which endangers the rights of victims^[4].

The norm of criminal responsibility for battery is the norm with the so-called double-prevention. Establishing responsibility for the commission of this crime, the legislator prevents the commission of grave crimes against the person, namely: murder, intentional infliction of a grave injury, etc. Transfer of this crime to the category of administrative infraction will significantly weaken such prevention^[5].

As for Article 157, the annual increase in the number of people convicted of default in paying money for maintenance of children and physically disabled parents (Criminal and Criminal Procedure Codes) means that even with the help of criminal law mechanisms of the state the commission of this crime cannot be prevented properly today. Decriminalization of Article 157 of the Criminal Code would lead to a substantial weakening of the rights of children and disabled parents, which is unacceptable taking into account the fact that the Russian Federation is declared as a social welfare state (Article 1 and Article7 of the Constitution of the Russian Federation).

In addition, the decriminalization of Article 157 of the Criminal Code is not consistent with the National Strategy of Action in the interest of children for 2012 – 2017of the Russian Federation according to which the development of measures to ensure regular payment of child's maintenance which will be sufficient for supporting children, including through the establishment of the state alimentary fund is declared as one of the principles of protection of children^[7].

In addition, the existence of administrative prejudice in the criminal law is criticized also by scientists. They consider that no matter how many times are administrative infractions are committed, due to lack of public danger administrative infractions will never acquire another quality, namely, quality of a crime, and will only be repeatedly committed administrative infractions^[8].

The next problem, that we will consider, concerns Article 76.2 (release from criminal liability in connection with the infliction of fine to person who has committed a crime of little gravity or average gravity). It is not clear whether the fine can be inflicted to juveniles and whether they can be released from criminal liability in connection with the infliction of judicial fine.

Besides, according to Article 90 a juvenile who has committed a crime of little or average gravity may be relieved from criminal liability if it is found that his reformation can be achieved by applying compulsory measures of educational influence. Here arises another question of choice between applying compulsory measures of educational influence and/or judicial fine. The Article 90 of the Criminal Code is more favorable. In accordance with the Article 90 of the Criminal Code a juvenile who has committed a crime of little gravity or average gravity can be released from criminal liability with the use of compulsory measures of educational influence when the crime is not committed for the first time. So, Article 90 of the Criminal Code does not require committing of crime for the first time as opposed to Article 76.2. It turns out that for juveniles the release from criminal liability in connection with the use of measures of educational influence is more humane. So, the declared goal of the humanization of criminal legislation in this case is not achieved.

The following issue concerning the changes offered by the Supreme Court is the discrepancy between Article 75 of the Criminal Code (release from criminal liability in connection with active repentance) and Article 76.2 (release from criminal liability in connection with the infliction of judicial fine). Article 75 of the Criminal Code provides that a person who has committed a crime of little or average gravity for the first time may be released from criminal liability, if after the perpetration of the offence he has given himself up, assisted in the exposure and investigation of the crime, compensated for the damage inflicted, or in any other way effected restitution for the damage caused as a result of the crime, which has ceased to be socially dangerous as a result of active repentance. The difference between Article 75 and Article 76.2 is that active repentance contains broader list of actions than Article 76.2. However, the majority of researchers and law enforcers consider that in case of active repentance offender may not sometimes do all actions provided by Article 75 of the Criminal Code. For example, giving oneself up may not always be realized because the offender can be arrested by law enforcement bodies or assistance in the exposure of a crime is not always possible when the crime and the circumstances of its commission are obvious. According to clause 4 of the Decree of the Plenum of the Supreme Court of the Russian Federation “On Application by the Courts Legislation Regulating the Grounds and Procedure for Release from Criminal Liability in Connection with Active Repentance” the release from criminal liability is possible if the offender has done those actions which are objectively possible to be done taking into account the specific circumstances.

Taking into consideration these facts, if a person has committed crime of little or average gravity for the first time and has only compensated for the damage inflicted, or in any other way effected restitution for the damage caused as a result of the crime, but objectively was not able to carry out other forms of active repentance, both Article 75 and Article 76.2 can be applied. In case of such discrepancy between these legal rules the Article 75 should have priority since it is more favorable for offender as it provides unconditional type of exemption from criminal liability. However, if the difference of criminal norms is always resolved in favor of Article 75 of the Criminal Code, the Article 76.2 is doomed to non-application.

In summary, although the changes made to the Criminal Code aimed at humanization and liberalization of criminal legislation, the effective protection of individuals and the order of administration from criminal acts, they give an opportunity to authorities of preliminary investigation to focus their resources to the investigation of grave crimes. However, there are some debatable issues concerning these changes (with the exception of the establishment of criminal liability for minor larceny), which lead to conclusion that these amendments do not correspond to the declared goal of the humanization and liberalization of criminal law and pursue narrow departmental purpose of more simplification of the criminal process^[5]. Only after the solution of these problems the changes made to the Criminal Code will achieve their purposes.