Interpretation of the Criminal Code of the Russian Federation (Volumes 1 and 2)

Author: Huang Daoxiu
Publisher:
Publication Date: 2000-01-01
Features: This is a major step forward in judicial reform, improving the protection system for individual rights and freedoms, and the democratization of criminal legislation in our country. Born in response to the fundamental economic, social, and political reforms in contemporary Russia, the mission of this code is to maximize the formation of a new society and promote the establishment of the principles of the rule of law, legal order, and international law concerning human freedom and safety in our society. The new Criminal Code of the Russian Federation came into effect on January 1, 1997. This code was passed by the State Duma on May 24, 1996, approved by the Federation Council on June 5, 1996, and signed by the President of the Russian Federation on June 13, 1996. This is a major step forward in judicial reform, improving the protection system for individual rights and freedoms, and the democratization of criminal legislation in our country. Born in response to the fundamental economic, social, and political reforms in contemporary Russia, the mission of this code is to maximize the formation of a new society and promote the establishment of the principles of the rule of law, legal order, and international law concerning human freedom and safety in our society.
The 1996 Criminal Code – This is Russia's fourth Criminal Code. The three previous ones, as is well known, were passed in 1922, 1926, and 1960. The 1960 Criminal Code of the RSFSR replaced the Stalinist repressive legislation of the 1930s and 1940s, so it is undoubtedly more progressive and democratic compared to it. However, even this code was still a product of the administrative command system and bore the imprint of the evils of authoritarianism. The previous criminal legislation was based on the belief in the power of coercion and repression, believing that economic mistakes could be eliminated through the force of criminal law rather than through corresponding economic and social reforms. The legislation did not prioritize the values of humanity, respect for human rights and freedoms, and respect for the international obligations of the state.
The outstanding features of the norms of the Criminal Code of the RSFSR were the excessive ideological nature of many provisions, opportunism, and a declaration-like character. Enforcement practice often felt the instability of criminal legislation. The Criminal Code of the RSFSR underwent more than 700 amendments and supplements from the time of its adoption to its abolition, and some norms were changed five to seven times. In addition, the code was filled with "stiff" norms that were rarely applied; the additions to the code were haphazard, with some norms repeating or conflicting with each other. It should also be noted that criminal legislation as a whole did not stipulate criteria for distinguishing between crimes and non-crimes. All the above issues combined undermined the necessary systematic nature of criminal legislation. The uncertainty of legal language made it impossible for the public to understand what behavior constituted a crime. As a result, it was actually the legislators themselves who contributed to the emergence of legal nihilism. The outdated and undemocratic legislation could not effectively respond to the social changes taking place in Russia and could not guarantee the transition of the state to market relations, as its foundation was a rigid centralized planned economy system. The previous legislation was also incompatible with the concept of a democratic rule-of-law state in many respects. It is therefore clear that the fundamental reason for the necessary and essential reform of Russian criminal legislation lies in the fact that many provisions of the previously applicable legislation no longer conform to the economic, social, and political needs of contemporary Russian society, let alone the international legal standards on human rights. Another important reason is that the previous legislation was, from the very beginning, insufficiently substantiated from a criminological point of view and did not take into account the new characteristics and trends of the crime phenomenon in a timely manner.
Before that, it was not possible to do so, because in the era of drafting the 1960 Criminal Code of the RSFSR, criminology as a science did not even exist in our country, and in the recent 30-35 years, the crime phenomenon had undergone significant quantitative changes, especially important were the significant qualitative changes. In recent years, the crime problem has acquired special significance for Russian society, becoming a real social disaster threatening the state system and national security of Russia. Statistics show that compared to 1960, the crime rate in Russia has tripled. Currently, approximately 3 million crimes are recorded annually (and there is still a large hidden figure: for every recorded crime, there are two unrecorded ones). The Criminal Code of the RSFSR, of course, was not designed to address this "crime explosion." The creators of the code were based on the premise that in the near future, almost in 10 years, the crime phenomenon would inevitably disappear. Therefore, any "patchwork" of amendments and supplements to this code could not curb the increasing wave of crime. A new Criminal Code of the Russian Federation is needed, one that not only meets the current economic, social, and political requirements but also adapts to the crime phenomenon in Russian society.
It is therefore clear that one of the most important tasks of Russia's policy in combating crime is the fundamental reform of criminal legislation. The implementation of this task requires both the necessary revisions and supplements to the current legislation and the drafting and adoption of a new Criminal Code. The reform of Russian criminal legislation is completed with the adoption of the new Criminal Code, based on the following principles.
First Point: Value in Combating Crime – The layout of the norms has undergone a fundamental change. The code recognizes that the human being is the highest social value in a civilized world. According to this principle, the principle of prioritizing universal values is thoroughly implemented, and the code solemnly declares its orientation as maximizing the protection of personal safety and vigorously protecting the life, health, reputation, personality, rights, and freedoms of citizens from infringement. The priority of this task is also stipulated by the provisions of the Constitution of the Russian Federation (Article 2) and guaranteed by the constitution. This principle is reflected in the norms of both the general and specific parts of the code. For example, the structure of the specific part is designed to conform to this principle, considering the importance of the objects of legal protection (according to the formula: individual – society – state), and the first to be stipulated are the responsibilities for crimes against the life, rights, and freedoms of citizens. The fact that the specific part of the code no longer begins with chapters on state crimes but with the section "Crimes Against Human Life" is not accidental. This section includes the following chapters: "Crimes Against Life and Health," "Crimes Against Personal Freedom, Reputation, and Personality," "Violations of Constitutional Rights and Freedoms of the Person and Citizen," and "Crimes Against the Family and Minors." In some norms of the above chapters, different responsibilities are stipulated according to the severity of the crime and the personal characteristics of the perpetrator and victim. For example, intentionally taking someone's life is a particularly serious crime and may be punished with the harshest penalties under aggravating circumstances (20 years of deprivation of liberty, life imprisonment, or death penalty), while killing without the above stipulated aggravating or mitigating circumstances is punishable by deprivation of liberty for 15 years or less. The harsher punishment for murder is due to the need to strengthen the legal protection of human life, the highest value. One of the starting points of the Criminal Code of the Russian Federation is that the death penalty must be retained for particularly serious crimes against the life of others (Constitution of the Russian Federation, Article 20). However, voices calling for the abolition of the death penalty are heard increasingly often. This issue has been actively discussed among legal workers – legal scholars and practitioners, as well as in mass media. But there is no consensus yet. However, the current reality of Russian criminology leads us to believe that it is too early to exclude this public safety measure (social protection measure) from the Criminal Code. Research shows that the death penalty has a deterrent effect on a certain number of people (even if it is a small number, experts estimate it at 14-18%). Punishing the intentional deprivation of someone's life with the death penalty is considered just and reasonable, a concept that has deeply rooted in the legal consciousness of society and cannot be ignored. Moreover, no one has calculated how many more of these crimes would increase if the death penalty were not retained for such crimes. The prospects for continuing this social protection measure are quite limited.
On April 4, 1997, Russia signed Protocol No. 6 to the European Convention on Human Rights and Fundamental Freedoms, which stipulates the abolition of the death penalty except in extremely limited circumstances related to war and the threat of war. The Federation Council of the Russian Federation will make a decision to ratify the protocol within three months. The vast majority of residents in Russia oppose the abolition of the death penalty. We firmly believe that the immediate abolition of the death penalty would undoubtedly give criminals a sense of impunity and encourage them to act with impunity.
It must be pointed out that to date, only 37 countries worldwide have abolished the death penalty, while 98 countries, including most states in the United States, still apply it. Forty of the member states of the Council of Europe still retain the death penalty in their legislation.
Second Point: The new criminal legislation firmly implements the principles of democratization and humanitarianism. According to Articles 3-7 of the Criminal Code of the Russian Federation, these principles include the principle of the rule of law, the principle of equality before the law, the principle of fault, the principle of justice, the principle of responsibility, and the principle of humanity. The principles of the code are that whether an act constitutes a crime and whether it should be punished and other legal consequences should only be determined by the Criminal Code. The content of the code should be strictly interpreted according to its articles. Criminal law analogy is not permitted. A person can only be held criminally responsible for actions determined to have been committed due to their fault. Objective criminal liability is not allowed. The penalties and other criminal measures applied to criminals should be commensurate with the nature and social harm of the crime, the circumstances of its commission, and the personal circumstances of the criminal, and should be necessary and sufficient to restore social justice, reform criminals, and prevent new crimes. Punishment should not be aimed at causing physical pain or humiliating the person.
Third Point: One of the features of the 1996 Criminal Code is the detailed distinction of criminal liability. The basis of this principle is that the standard for determining criminal liability is the interest of public safety. This means, on the one hand, retaining severe sanctions for serious and particularly serious crimes, recidivists, professional criminals, and organized criminals, and on the other hand, applying more lenient measures to criminals who do not require such severe treatment. In addition, this attitude means eliminating excessive criminal repression without violating the interests of public safety, not considering minor circumstances as crimes or subjecting them to punishment, and humanizing punishment itself.
Fourth Point: The new Criminal Code confirms the priority of international treaties on criminal liability over domestic law and reiterates the provisions of international treaties signed and ratified by the Russian Federation in specific norms. The principle of the priority of international treaties does not mean that international treaties are legally binding, because international conventions on combating crime generally do not contain definitions of prohibited acts or list specific sanctions; each country's legislator solves these issues based on the content and structure of domestic law, national traditions, etc. Declaring this principle only means that the legislative body of a specific country must immediately revise its own Criminal Code after signing and ratifying international agreements. According to this principle, Chapter 34 of the specific part of the Criminal Code, "Crimes Against Human Peace and Security," stipulates the responsibility for crimes such as aggression, incitement to war, hiring armies, genocide, violations of international protection for persons and organizations, ecological extinction, and violations of international treaties on war. Other chapters of the Criminal Code also take into account the principles of international conventions and make the best use of the experience of world legislation as far as possible.
Fifth Point: One of the outstanding features of the 1996 Criminal Code is that our criminal legislation is adapted to the current socio-economic needs. This principle is primarily due to the fact that our country is currently in a complex period: transitioning from a rigid centralized planned economy to free market relations, and legislation should maximize the promotion of this transition.
Sixth Point: The legislator has taken measures to adapt our criminal legislation to the domestic reality of crime. This indicates the need to meet a requirement: basing the principles of criminal legislation reform on a serious consideration of current and predicted crime trends, crime structure, new types of crime, the number of criminals, etc., and on an accurate and clear understanding of how the situation, structure, and dynamics of crime may change, thereby improving relevant legal institutions and norms. Otherwise, it cannot be ruled out that the legislator may make decisions that could complicate the situation in our country, increase recidivism, and have a negative impact on social order.
Seventh Point: It is also very important to point out the following advantages of the new Criminal Code: increasing the preventive function of criminal law, enhancing the effectiveness of special and general prevention, and expanding the role of incentive norms, i.e., norms in the Criminal Code with a preventive purpose. The basis of this principle is that the Criminal Code should stipulate penalties that make criminal activities unprofitable for many crimes.
Eighth Point: Many norms of the new Criminal Code have proven to strengthen the legal protection for employees of law enforcement and supervisory agencies and citizens participating in preventing violations. According to this principle, the following three crimes are included in the Criminal Code: crimes against the life of state or public figures (terrorism); crimes against judges, prosecutors, investigators, and other participants in trials or pre-trial investigations; crimes against the life of law enforcement officers or military personnel to hinder their activities in maintaining social order and ensuring public safety or to retaliate against them for such activities. These crimes are now considered completed as soon as the attempt to harm the life of the above persons is made (so-called truncated structure). The penalties for these crimes range from 12 to 20 years of deprivation of liberty, or the death penalty, or life imprisonment. In the context of rampant crime, ensuring stronger legal protection for the life and health of employees of law enforcement and supervisory agencies is an urgent requirement of the times, as, according to comparative data from UNESCO, the probability of police death in Russia is 2.5 times that in the United States and France. Unfortunately, the new Criminal Code has far from done everything to strengthen the criminal legal protection of employees of law enforcement and supervisory agencies.
Ninth Point: Another principle of the Russian Criminal Code is related to the improvement of the content and legal techniques of criminal legislation (related to the structure and systematization of legal institutions and norms, the logic and language of criminal law, and filling the gaps in past legislation).