§ 3. Contradictions of the criminal law and the ways to overcome them
The last twentieth anniversary is marked by the formation and intensive development of the sociological direction of Russian criminal law. The definite outcome of the development of criminal law's sociology was the development of criminalization principles as scientifically based and consciously used general rules and criteria for assessing the admissibility and feasibility of the criminal law novel, establishing responsibility for a certain type of acts. The main thing here is the criminalization and decriminalization of socially dangerous acts.
Let's try to understand the essence of this process. As is well known, each criminal law is objectively inherent in the internal contradictions. One of the most visual examples is a contradiction between the sanction and the sanction of the criminal law.
Criminal liability for a particular type of acts is established when there is a need to apply to persons who committed them, measures of criminal law enforcement. At the same time, the leading purpose of the criminal law is to ensure such a situation in which citizens would voluntarily refrain from committing criminal encroachments and, therefore, would not be required to apply criminal law sanctions.
The goals of the criminal prohibition in many respects contradict its real properties. Aimed at protecting social relations, criminalization introduces certain elements of destabilization. The emergence of new criminal and legal prohibitions is expanding the range of responsibilities of citizens, the scope of application of legal coercion and, by virtue of this, not softens affects public morals. Under conditions, when the overall high level of legal and moral consciousness has not yet been reached, criminalization objectively contributes to cultivation in a certain part of the population of "punitive psychology", attitudes towards criminals as social rudders, which will be issued on the issues of criminal and legal measures to combat crime.
More Montesquieu, fearing frequent and hasty changes in criminal legislation in the direction of strengthening its severity, wrote: "Evil disappears, but the cruelty of the legislator remains: remains in the state of evil produced by this cruelty. She distorted the minds, she taught people to despotism. "
Even more controversial, the actual application of criminal punishment, which is accompanied by a violation of socially useful ties of an individual with society, which is particularly clearly manifested in the insulation of the convicted person. In this regard, the development of criminal legislation in recent years is characterized by finding new, more advanced types of criminal and legal coercion, which would ensure minimizing the negative consequences of their application.
Here is another contradiction inherent in criminal law. Implementing the criminalization of acts due to the need to apply to persons who committed crimes, the most severe punitive measures, the state is forced to resort to the adjustment of these measures, mitigating, approaching them by the nature of the law enforcement to other forms of legal coercion.
Establishment criminal responsibility justified only when other means of combating a specific type of socially dangerous behavior are not effective. However, the paradox is that criminal liability itself, taken isolated from other forms of social control, is still less effective tool Preventing antisocial behavior.
Moreover, the criminalization of certain acts in practice often leads to a refusal or to limit the general enlightenment and special criminological measures to combat them. Haste appeal to criminal law enforcement of people's behavior is fraught with the fact that it may cause the illusion of ease of resolution of contradictions existing in social relations. The adoption of new laws that establish or enhancing criminal liability for certain types of acts, tightening punitive practices create an external impression of intensifying the struggle against negative phenomena of public life.
However, in reality it turns out much more difficult. As practice shows, even the necessary reasonable criminal law measures do not bring due effect, without being supported by a wide range of socio-economic, ideological and special preventive measures, ensuring the conditions for the implementation of the objective patterns of reforms in the Russian state.
The indicated contradictions characteristic of criminal law prohibitions are an objective, dynamic nature, reflecting the nature of the criminal law standards and their place in the social regulation system. These contradictions cannot be ignored, they are impossible to eliminate them once and forever. They can only and should be taken into account when implementing criminal policies, consistently resolved at each specifically historical stage of development. legal system At the expense of a scientifically based approach to the choice of forms and methods of combating crime so that with the new sharpness arise at each next stage.
If the threat to the punishment, according to Hegel's expression, "moves towards justice", if criminalization leads to contradictory social results, then the first requirement to criminal law is to criminalize both forced, extreme and undesirable to the community to combat socially dangerous encroachments.
Unwanted both from the point of view of the negative consequences of the application of measures of criminal law enforcement, and from the standpoint that the need for itself in such measures is evidenced by a certain undevelopability of the general enveloped system. Therefore, the criminal prohibition should be established only when the objective need for the application of criminal and legal coercion "overlaps" the set of its negative consequences.
The legislative solution on the declaration of a certain act of criminal law with a known state of convention was applied to the formula of the Ministry of Employment: criminalization, as an act of protection of some social values \u200b\u200bby violating others, is permissible only inspired, since they will not "work" other possibilities of preventing socially dangerous encroachments, and Socially useful result of criminalization exceeds its harmful effects.
Criminal prohibition is introduced in order to:
Serve as an additional factor holding unstable citizens from committing crimes;
Legalize objectively due to the need to apply them to persons who committed them, the most severe measures of state coercion in the strict framework of legality when ensuring the constitutional rights and interests of the individual. At the same time, criminalization should not be canceled, but complement other social measures to combat socially dangerous encroachments. To a large extent, it is precisely the emergence of a new criminal prohibition to encourage the widespread use of preventive measures.
Criminalization of Acts is an acute signal of the need to intensify activities to identify and eliminate the causes and conditions for its commitment. The existing threat to criminal punishment makes more "sensitive" respond to other measures of impact. Finally, the establishment and application of criminal responsibility measures causes the need to use special funds aimed at preventing relapse.
Thus, the criminalization of certain types of antisocial behavior objectively requires an increase in the effectiveness of social and specially criminological prophylaxis, on the intensity and quality of which depends on the effectiveness of criminal law enforcement. In order for the center of gravity in the fight against those or other types of socially dangerous acts, he was not transferred to the scope of punish-forced activities, it seems necessary:
Reasonable restriction on the law of criminal liability, subordination of the activities of criminal justice bodies to the tasks of the prevention of crimes,
Implementation simultaneously with the criminalization of the development and introduction of additional organizational and legal forms of preventing acts of criminal behavior.
The requirement to limit the limits of criminal liability means, first of all, the inadmissibility of the criminalization of those acts that are not submitted in these conditions of significant public danger, do not cause harsh irreconcose by public opinion and the fight against which can be performed quite effectively without going to criminal liability.
As the history of criminal law policy in Russia shows, this indisputable position is far from always complied with legislative practice. Search for flexible protection forms public relations It has quite naturally led to the expansion of the use of so-called conditional criminalization (or conditional decriminalization), in which the imposition of administrative recovery is preceded by the offensive of criminal responsibility for such an offense. At the same time, the legislator in the new (current Code of the Russian Federation) law for unknown reasons abandoned the allocation. It seems to us that conditional criminalization should be considered as the most effective means of legal response to acts that occupy a borderline situation between crimes and administrative offenses.
The limitation of criminal liability in law should be reinforced by the prophylactic orientation of criminal justice bodies. However, this task is easy to proclaim, but it is extremely difficult to implement practically. In the way of its solution, there are a number of objective and subjective obstacles that have certain historical roots. We must not forget that, since the 30s, law enforcement activities in the USSR had an unreasonably punitive orientation, which adapted the relevant organizational forms and professional awareness.
Moreover, the huge danger of the methods of combating crime and social management in those years, not only in the fact that many innocent citizens became victims of unfair repression, but also in the fact Stalinism significantly contributed to the dehumanization of all social life, which was especially clearly manifested The sphere of criminal proceedings. It is necessary to recognize with all the frankness that the "punish-indictment" in practical criminal policy has historical traditions, psychological background and organizational and legal framework.
It seems that individual scattered events aimed at improving the effectiveness of the prevention of criminal acts, the provisions of cases radically improves. We need one legislative act The prevention of crimes in which the main objectives and principles of preventive activities, the tasks and functions of law enforcement and other government agencies and public formations, criteria for evaluating the effectiveness of crime prevention, the duties of specific officials on the organization and conduct of preventive measures, etc.
Editorial office The 23 Criminal Code causes many questions and first of all - is it possible to regard the state of intoxication as a mitigating or aggravating circumstance? In law enforcement and legal literature, it is mainly recognized by the possibility of recognizing by the mitigating circumstance in individualization of criminal liability and imposing punishment (for example, forced budgeting to intoxication). However, intoxication cannot be recognized as such in three cases:
1) if the subject deliberately led himself into a state of intoxication in order to facilitate the commission of a crime;
2) if the subject deliberately led himself into a state of intoxication, believing that his state would be regarded as a circumstance mitigating punishment;
3) If the subject knew or had any reason to assume that under the influence of or as a result of such a condition in which he deliberately led himself, they would be committed a crime. one
In conclusion, it should be said that in each case, when the foundations and reasons for criminalizing a certain type of acts were revealed, the reaction of the state should not be limited to the introduction of a criminal law and organization of punitive activity. In this kind of situations, the development and implementation of a comprehensive program to combat data is needed by a socially dangerous encroachment, in which the system of foreign social, special-criminological and legal measures would be envisaged and where the place of emergency and forced funds would be assigned a place of criminal liability.
National Research University Higher School of Economics, Russian Federation, to. Yu.N., Associate Professor
Criminal prohibition within the legal dimension
The criminal law is a regulatory prescription (legislative legal design), enshrining all possible options (models) criminal behaviorrecognized in accordance with the criminal legislation with unlawful in a particular historical period. The criminal law can be viewed and as a formal state-powerful rally of a regulatory nature, which contains the obligation of the person not to perform (refrain from the commission), socially dangerous acts recognized by the criminal law by the unlawful, which, being perceived by the addressees as a "negative duty", interprets public relations through The prism of the mechanism of criminal law. Perceived by citizens as a "negative duty", the criminal law is becoming even closer to the category subjective right (Being its antipode, like a subjective responsibility) than to the category of objective law.
Criminal prohibition is not only a formal state-authority of a regulatory nature, but also the interpretation of social relations (social context) through the prism of the goals and objectives, symbols and legal structures criminal law. As a primary, elementary, independent, whole, logically completed cell in the context of the criminal law, it reflects both the specifics of the content of the criminal law and the peculiarities of the method of criminal law regulation indirectly to existing social relations.
The value-orientational and motivational and psychological effect of criminal law prohibitions is a peculiar superstructure of general relationships (generalization) public relations arising in the process of implementing (compliance) of criminal law prohibitions. The fulfillment of such a task of criminal law, as a prevention of crimes, is largely provided by the positive criminal liability, which containively includes the perception (awareness) of established criminal law prohibitions, the real criminal-legitimate behavior of the subject, as well as a positive assessment (approval) of this behavior with Parties to the state. The very fact of the establishment of criminal law prohibitions, i.e., the definition of the circle of punishable acts is not just a prerequisite, but the basis of positive criminal liability, while the awareness of criminal law prohibitions is its most important element. Ideally, the establishment or existence of a criminal prohibition should be the primary special measure of countering crime.
The philosophical foundations of the criminal law is revealed, on the one hand - in the manifold of its manifestation, its multi-masterness, versatility and integrality as a phenomenon human history and culture, on the other hand, in its individuality and specificity as one of the methods of informative, value-orientational and psychological impact on citizens and the most stringent legal limitation of public freedom established by the state; borders of private law and a special means of scaling for legitimized state violence for committing crimes; Factors interpreting public relations through the prism of criminal law and the legislative model of potential criminal behavior.
The sociological survey among scientists exploring the issues of criminal law showed that the main purpose of criminal law prohibitions is estimated far from unambiguously. Most scientists indicated that the main purpose of criminal law prohibitions is either in identifying (limiting borders) of the acts defined by criminal according to the Criminal Code, or in keeping persons from committing crimes.
By virtue of complexity legal nature Criminal and legal prohibitions seems necessary to allocate a system of functions performed by them. The first group of functions of criminal law prohibitions will reflect, first of all, their informative and value-orientational, although completely to it is not reduced. This group of functions is associated with the action of a criminal law bearing as an element of objective right to a mental (ideological-motivational) level, but also by understanding it as a "negative duty", that is, at the level of subjective law. The second group of functions of criminal law prohibitions will reflect their institutional component. This group of functions is determined by the understanding of the criminal prohibition as the primary nucleus, the element of the criminal law system and at the same time as a tool for state influence on public relations. The first group of functions include security-regulatory, warranty-legitimizing, information and orientation, value-motivational. The second group is an estimated interpretation, instrumental-preventive, legal and technical (accumulating). The listed functions of criminal law prohibitions, in our opinion, are the main (basic), and by virtue of this the proposed list does not claim a comprehensive, exhaustive nature. But the allocation of a system of independent functions of the criminal law prohibition other than the functions of the rule of law (the norms of criminal law) and the functions of the crime of the crime confirms the thesis on the independence and multidimensities of the relevant legal education.
The allocation of the system of independent functions of the criminal law prohibition only confirms the thesis on the independence and multi-term of such a socio-legal phenomenon as a criminal law.
Literature:
1. Marcunitsa-Right prohibition as a sociole-legal category // Legal research: New approaches. Collection of articles of the Faculty of Law HSE. - M.: Law Firm "Contract", 2012. P. 379-388.
2. Marcunitsa of the criminal law // Library of the Criminalist. 2013. No. 4 (9). P. 53-61.
3. Marcunitsa functions of a criminal law. // Criminal law: Development strategy in the twentieth century: materials ninth international scientific and practical conference January 26-27, 2012 - M.: Prospekt, 2012. P. 60-63.
The social purpose of criminal law is determined by its tasks that are formulated directly in criminal law. In Article 2 of the Criminal Code of Belarus, it is indicated that the task of this Code is the protection of "peace and security of mankind, a person, his rights and freedoms, property, rights legal entities, natural environment, public I. state interests, constitutional system Republic of Belarus, as well as established law enforcement from criminal encroachments. " Further in this article states that the Criminal Code "contributes to the prevention of criminal encroachments, the upbringing of citizens in the spirit of compliance with the legislation of the Republic of Belarus."
Protection (availability of protection system) from socially dangerous encroachments is the objective quality of any organized society. The function of the protection of society and the law established in it takes on the state, being a powerful guarding authority. Criminal law is in the hands of the state legal protection established and established in the Company of relations by defining and declaring in criminal laws as criminal acts dangerous to society, and their universal prohibition under the threat of criminal responsibility of everyone who commit a crime.
Criminal law, announcing the most dangerous Activities of the Act of Civil and the prohibition of their commitment under the threat of criminal liability, thereby preventing the commission of crimes. Numerous studies convincingly confirm the fact that the number of crimes would increase many times if the threat of criminal responsibility for the implementation of the relevant criminal acts1 was lifted. Of course, in itself, criminal law can not solve the task of combating crime, the reasons for which are social and individualistic and ultimately not eliminated. Causes that generate crime are preserved and will be maintained to one degree or another in any society. With the conservation of social causes of criminal manifestations, criminal law can only contribute to the prevention of crime through the threat of criminal liability and the use of measures of its impact in the event of a crime.
The task of warning crime Criminal law solves twofold: firstly , by conventional impact on citizens by the fact of the prohibition of the relevant criminal act under the threat of criminal liability of everyone who commit such an act, and, secondly , by preventing new crimes from the persons condemned for committing crimes to a certain extent of criminal responsibility. In the latter case, the warning is carried out by actual application for guilty criminal responsibility measures.
Criminal law objectively contributes to solving tasks of education Citizens of the community, orienting them on listened behavior, strengthening the public positions of moral condemnation of criminal behavior. The effectiveness of the educational resonance of criminal law is determined by the adequacy of the criminal law, social expectations and interests of the majority of members of society, justice and the inevitability of criminal liability for committing a crime.
Guardian, warning and educational task implemented by criminal law in unity through the establishment and regulation of the special kind of public relations - guardian criminal relations . Regulation of the relevant social relations is an integral property of the right, including a criminal, despite its security. Therefore, regulation of protective relationship is not a task, but a function (functional property) of criminal law. Criminal law through the introduction of a ban on the commitment of the acts dangerous to society under threat of criminal liability solves the following tasks: a protective, preventive and educational.
Protection of public relations from criminal encroachment criminal law by regulation common protective relationship who arise between the state and citizens about compliance with the prohibitions established under the threat of criminal liability as well conflict guardianship between the state and the person who committed the act containing the signs of prohibited by criminal law.
The legal prohibition established by the state under the threat of criminal liability for committing a criminal act concludes a complex of mutual rights and responsibilities. stateswho has established a ban and citizensobliged to refrain from the execution of the acts prohibited by the criminal law. The norms of criminal law, the forbidden committing criminal acts, establish for citizens not only the obligation to refrain from the execution of acts that violate criminal law prohibitions, but also the right to demand from the state of criminal law If their activity does not violate the relevant prohibition. Thus, the content of common protective criminal relations forms a set of mutual rights and obligations of its subjects: one side Citizens are obliged to comply with criminal legal prohibitions and at the same time require from the state of ensuring the criminal law of prosecution (non-separation of punishment and other criminal responsibility measures) if their behavior does not violate the prohibitions; on the other hand The state has the right to demand from citizens under the threat of criminal responsibility of compliance with the established prohibitions and at the same time must ensure the criminal law of citizens who do not violate criminal prohibitions. There are general protective criminal relations directly from the criminal law from the moment of its adoption and entry into force. The specifics of general protective legal relations arising from criminal law prohibitions are that they are organized directly by the state, which is simultaneously the subject of these legal relations, and the carrier of powerful powers on their approval.
Conflict criminal relations arise on the basis of general protective criminal relations since the face of the act falling under signs of prohibited by criminal law. In accordance with the norms of criminal law, the state represented by its law enforcement It is entitled to give a legal appreciation to the perfect act and when he is recognized by his crime to attract the guilty of criminal liability. In turn, the state obligated The legal assessment of the perfect act for recognizing him criminal in strict accordance with the criminal law and impose on the guilty only such a measure of responsibility, which is provided for by the sanction of the Criminal article. The person who committed a crime is obliged to undergo a criminal liability assigned to him and, in turn, have the right to demand from the state of compliance with the limits for the application of responsibility measures established by the criminal law for the crime committed by it.
Criminal law, implementing a protective, preventive and educational task through the establishment and regulation of the protective relationship, is in the hands of the state an effective legal means of combating crime. According to its origin, the norm of criminal law comes from the state, are the expression of its policies in the field of crime control by means of criminal law enforcement.
Criminal policy - These are the strategy and tactics developed by the state, which determine the main tasks, principles and means of impact on crime, through the formation of criminal legislation, criteria and the level of criminalization, the choice and determination of the criminal sanctions system for committing the crime and their rational use. Criminal policy is divided into criminal law, criminal executive, criminal procedure and criminological.
The meaningful side of the criminal law policy, which is directly related to the criminal law, is the decision of the following issues: the definition of the basic principles and approaches in the field of criminal and legal impact on crime; establishing a circle of socially dangerous acts recognized by criminal (criminalization); Exception of certain acts from the number of criminal (decriminalization); Determination of the nature and types of punishment, but equally alternative to the punishment of the system of measures of criminal and legal impact on the criminal, grounds and conditions of liberation from criminal liability and punishment; identifying the possibilities and basic ways of narrowing the scope of punishment; Finally, the definition of the activities of law enforcement agencies on the effective and rational application of criminal law.
On the main mistake of criminalist scientists.
The cornerstone of the whole theory of criminalization is the problem of the foundations of the criminal law prohibition, i.e. These rights factors that cause the permissibility, the possibility and feasibility of recognizing a socially dangerous act with criminal and criminal punishable.
In special literature, attempts are made to reanimate a look at the public danger as a sign inherent only in crimes. In the sense that criminalization involves "assigning one or another socially dangerous acts in the category of criminal acts with the establishment of criminal responsibility for him" According to A.V. Naumova, criminalization is legislative recognition certain acts criminal and punishable. Establishment for their commitment to criminal liability. A.I. Koroughv determines criminalization as the process of identifying socially hazardous forms of individual behavior, recognition of admissibility, the possibility and feasibility of criminal law with them and fixing them in law as criminal and criminal punishable .
According to the Soviet and Russian criminal law, public danger is basic or, as noted, one of the required signs, characterizing act as a crime and deliberate criminal acts from other types of offenses: administrative, civil, etc.
Criminal law (Wikipedia material) is a branch of law regulating public relations related with the commission of criminal acts appointing punishment and application of other measures of a criminal law, establishing grounds for criminal responsibility, or exemption from criminal liability and punishment. In the textbooks on criminal law on the same, but in various interpretations.
Thus, where you can not see that you do not explore everywhere we are talking about:
first, the classification of all criminalized acts in the category of criminal (fixation of them in law as criminal);
secondly, on the establishment (appointment) for the criminalized publicly dangerous acts of criminal punishment (fixation of them in law as criminal punishable).
This is a mistake, and rude enough. What is it lies.
Interestingly, my teacher (the supervisor A.I. Korev) made one of the greatest discoveries, namely, we will quote the "cornerstone of the whole theory of criminalization, the problem of the foundations of the criminal law prohibition, i.e. These rights factors that determine the permissibility, the possibility and feasibility of recognizing the socially dangerous act of criminal and criminal punishable. "
The value of this discovery we will look at the study of a socially dangerous act. That is, in other works.
Alexander Ivanovich is absolutely right when it reflects on "those of the property factors that determine the permissibility, the possibility and feasibility of recognition publicly dangerous act...), and then, we ask the question, is it only criminal and, accordingly, criminal punishable? Rather " includingcriminal and criminal punishable. "
For the legislator criminalized not only criminal acts.
He criminalized if you wish, established a criminal prohibition for socially dangerous acts that are in the Criminal Code of the Russian Federation, but is not necessarily criminal.
What makes an unbearable who hit the victim in the heart, as a result of which the death of a person comes?
He commits a socially dangerous act prohibited by the Criminal Code of the Russian Federation. For there is no subject of crime.
What makes a person who are in the state of the necessary defense that hit the attacker in the heart, as a result of which the death of a person comes? If this encroachment of the victim (who attacked) was associated with violence, dangerous to the life of a defendant or other person, or with the immediate threat of such violence.
He commits a socially dangerous act prohibited by the Criminal Code of the Russian Federation (murder).
It is not subject to criminal liability due to the circumstances (acts legitimate) excluding the crime of act.
What makes a person who is innocently causing death to another person.
He commits a socially dangerous act prohibited by the Criminal Code of the Russian Federation.
Pay attention. This is about act.
Article 28 of the Criminal Code.
1. Actit is recognized as innocently, if the person who committed him, did not realize and in circumstances could not be aware of the public danger of their actions (inaction) or did not foresee the possibility of the offensive public hazardous consequences And according to the circumstances, it was not necessary or could not foresee them.
2. Act He is also recognized as innocently, if the person who committed it, although it was the possibility of the occurrence of socially dangerous consequences of his actions (inaction), but could not prevent these consequences due to the inconsistency of their psychophysiological qualities with the requirements of extreme conditions or neuropsychiatric overloads.
Not subject to criminal liability.
They (acts) are not criminal, even if they are in the Criminal Code of the Russian Federation.
Therefore, they commit socially dangerous acts prohibited by the Criminal Code of the Russian Federation, but not a crime.
Secondly, in criminal law, only punishment is provided? Yes no, there is also other criminal proceedings.
If the act prohibited by criminal law makes an unbearable, then "forced medical measures" can be appointed. Why are they (measures) are appointed?
Article 97. Grounds of applying forced medical measures
1. Forced medical measures can be appointed by the court to persons:
a) committed acts stipulated articles The special part of this Code, in the state of insaneness.
Again we are talking about the act.
At the same time, the subject of criminal law is completely correctly indicated. What is strange.
The subject of criminal law as a branch of law form public relations arising in connection with the commission and acts provided for by criminal law…
Invertible Act, but criminalized act.
Rather, not only a criminal act.
How correct notes V.N. Kudryavtsev, "The norm of the criminal law should include those and only the acts that are truly dangerous for society and with which can be struggled only criminal law» .
Public danger There is an objective property of acts characterizing it (act) as a really dangerous personality, society and the state, the fight against which can be conducted only by criminal law.
Criminal prohibition is generated by the objective needs of society in the criminal law of public relations. The form of its expression in the law must comply with the content of a socially dangerous act. The objective need for a criminal law cannot "fire" into the criminal law itself, by passing the will of the legislator. PRIZING FACTORS are reflected in the legal consciousness of the legislator and, shifting in the latter, are embodied in criminal law.
And last.
Ignorance of truth leads to paradoxes.
Article 13. Issuance of persons who have committed a crime
1. Citizens Russian Federationwho committed a crime on the territory foreign state, Do not be issued to this state.
Citizens of the Russian Federation, who committed a crime in the territory of a foreign state, are not subject to issuing this state.
And insane and innocentCitizens of the Russian Federation who have committed exactly the same acts prohibited by the Criminal Code in the territory of a foreign state, already subject to issuance to this state?
For they do not commit a crime, but socially dangerous act prohibited by criminal law.
By the way, in chapter 2 "The action of the criminal law in time and in space" several such odious norms.
Look, think.
Kudryavtsev V.N. Criminalization: Optimal models // Criminal law in the fight against crime. M., 1981. P. 6.
R.N. Amenin - graduate student of the Department of Criminal Law and the Process of the Institute of Law Bashfa (Ufa)
The system of legal prohibitions in the criminal process
It is known that the system in the right is an objective association (compound) according to the meaningful features of certain legal parts into a structurally ordered intellectual unity, which has relative independence, stability and autonomy of functioning. 1 is inherent in legal prohibitions, including those contained in criminal procedure law .
Essence of these legal means It is that they prohibit a certain action, indicate the legal impossibility of any specific behavior. Usually they are expressed by the words "not entitled", "can not", "cannot be", "not allowed," "is prohibited."
The prohibition may have an indirect expression. For example, the provision that "a preventive measure, chosen on the basis of judicial decisionmay be canceled or changed only by the court "(Art. 110 of the Code of Criminal Procedure), means that criminal prosecution authorities cannot accept some decision in terms of preventive measure, chosen by the court. The principle of the presumption of innocence implies a ban to consider the accused guilty until his guilty The crime will not be proved in the planned procedure and established the judgment of the court that entered into legal force (Article 14 of the Code of Criminal Procedure).
In the legislation regulating the criminal process, there are many prohibitions relating to various fields of criminal procedure. According to sources of this industry, they can be divided into international legal, constitutional and direct procedural.
Thus, in the Universal Declaration of Human Rights to the Criminal Procedure, such, for example, bans, as: "No one should be subjected to torture or cruel, inhuman or degrading treatment and punishment" (Art. 5); "No one can be subject to arbitrary arrest, detention or punishment" (Art. 9); "No one can be convicted of a crime on the basis of the commission of any act or for the inaction, which during their commission did not constitute a crime on national laws or by international law". It cannot be punished with a cleaner, rather than that could be appointed at the time when the crime was committed (Art. 11);" No one can be subject to arbitrary intervention in his personal and family life, arbitrary encroachments for inviolability of his Housing, the secret of its correspondence or on his honor and reputation ... "(Article 12) 2, etc.
Similar rules are available in the Constitution of the Russian Federation (Article 19, 21, 22, 24, 25, 35, 47, 49, 50, 54), which, possessing the property of the highest legal force, Remedies and concretization in the Code of Criminal Procedure. However, there are also bans that have other content. Their circle is quite wide.
To confirm how diverse they are, it is possible to call: preventing the application of the law contrary to the Code (Article 7); The prohibition of recognition guilty of committing a crime and the application of the criminal law is otherwise as a sentence of the court and in the manner prescribed by the Criminal Procedure, deprivation of the right of defendant to its case in the court and the judge, to the jurisdiction of which it is classified as Code (Article 8); prohibiting the imposition of the accusations, protection and permission of the criminal case on the same body (Article 15); Inadmissibility of controversy disputes (Art. 36); Inadmissibility of a lawyer's failure to protect the suspect, the accused (Art. 49); inadmissibility of participation in the criminal process of persons to be dispersed (art. 62); the inadmissibility of evidence obtained in violation of the Code (Article 75); prohibition of extension of the term of detention over 18 months (art. 109); Prohibition of holding investigative actions at night (Art. 164); Invalidation of a sentence on assumptions (Article 302) and limiting the duration of the last word defendant in a certain time (Article 293), etc.
Their regulatory function is expressed in the legal obligations of passive content, i.e. Responsibilities refrain from performing actions of the famous kind. So, h. 4 art. 57 CPC through the concept of "not entitled" obliges an expert not to negotiate with the participants of the criminal proceedings on the issues related to the production forensic examination, without the knowledge of the investigator or court; Do not assemble materials for expert research; Do not disclose the data preliminary investigationwho became known to him in connection with the participation of a criminal case as an expert; Do not give knowingly false conclusion. Speaking otherwise, it requires to refrain from these actions, if there are no legal conditions for their commit.
Criminal procedural prohibitions are characterized by everything that is characterized by legal obligations in general (fundamental unambiguity, imperative categoricalness, indispensability, ensuring effective legal mechanisms). At the same time, the originality of their content, expressed in passive behavior, i.e. In the idle of those or other persons on this circle of questions, puts bans in a special position. This predetermines the features of many legal means and mechanisms designed to implement prohibitions.
Thus, the prohibition of the use of evidence obtained in violation of the law (Art. 75, 88 of the Code of Criminal Procedure) is ensured by an indication of the cancellation of the sentence in case of its substantiation of unacceptable evidence (paragraph 9 of Part 2 of Article 381). If there were falsification of evidence, the coercion of the suspect, the accused, the victim, the witness to the dacha of testimony or expert to the country of detention, as well as the illegal exemption from criminal liability, the involvement of knowingly innocent to criminal responsibility and make obviously unrevious judicial acts, a criminal Responsibility (Art. 239, 300, 302, 303, 305 of the Criminal Code of the Russian Federation). Provided for art. 42, 44, 54, 56 - 60 CPC and transmitted through the concept "not entitled" duties of the victim, civil plaintiff, a civilian defendant, a witness, an expert, a specialist, a translator, understanding about calling on call, giving testimony, conclusions, translation, invalid data The preliminary investigation is supported by the possibility of criminal punishment, respectively, for the refusal of testimony, obviously false testimony, the conclusion of an expert or the wrong translation, bribery or coercion to the dacha testimony or evasion of testimony or to incorrect translation, disclosure of the preliminary investigation data (Article 307 - 310 of the Criminal Code RF). Invalidness of detention and imprisonment of persons in custody in the absence of legal grounds is also supported by the establishment of criminal responsibility for the obviously illegal application of these coercion measures (Article 301 of the Criminal Code of the Russian Federation). The provisions specified in the articles of the Criminal Code of the Russian Federation, in turn, are affixed by the prohibitions of criminal proceedings.
From the above, it is clear that the prohibition standards occupy a significant place in the system of guarantees of the rights and responsibilities of the subjects of the criminal proceedings, the legality and validity of their actions.
Literature and notes
1. See: Alekseev S.S. General Theory rights. T. 1. M.: Jurid. Lit. 1982. P. 240 - 242.
2. International Acts on Human Rights: Collection of Documents. M.: Norm. 1998. P. 40 - 41.