Pub Date : 2021-11-25DOI: 10.17150/2500-4255.2021.15(5).613-623
N. Manova, A. Churikova, I. Smolkova
The prosecutor plays a special role in counteracting crime, being the public officer whom the state made responsible for coordinating the activities of all law enforcement bodies, as well as for the legality and validity of criminal prosecution against persons who committed crimes. Today, alongside the legal model of the prosecutor’s activity provided for in the Criminal Procedure Code of the Russian Federation according to which the prosecutor performs the function of criminal prosecution nominally and is, in fact, removed from the participation in the pre-trial stages of the criminal process, there has also developed a rather autonomous real-life model of the prosecutor’s activities. In practice, the prosecutor still has an opportunity to influence the decisions regarding the initiation of a criminal case and indictment at the stage of preliminary investigation. The study of a prosecutor’s participation in the pre-trial proceedings, a survey of prosecutors, investigators and inquiry offices made it possible to conclude that rights and legal interests of the participants in the process are often sacrificed for the sake of indicators of the effectiveness of criminal prosecution and crime solving rates. The authors analyze the causes of this situation and reveal the drawbacks in the current normative model of the prosecutor’s activity. This analysis allowed them to conclude that there should be no conflict between such determinants of a prosecutor’s activity as counteracting crime and ensuring the rights of the participants of criminal proceedings if the legal model of the prosecutor’s activity is well-considered and carefully drawn. The lawmakers should see their task in finding a reasonable and clear balance between the abovementioned values; the absence of such a balance will inevitably result in a repressive approach to crime counteraction, which is absolutely unacceptable for the modern legal state. The authors describe the factors which, if taken into account, will make it possible to eliminate key problems of the legal model of the prosecutor’s work as well as the distortions and errors in its enforcement. They make a number of suggestions aimed at designing a model of the prosecutor’s activities that would contribute to effective crime counteraction without violations against rights and legal interests of persons in the sphere of criminal proceedings.
{"title":"Can the Fight Against Crime Act as a Paradigm for the Legal Model of the Prosecutor's Activity?","authors":"N. Manova, A. Churikova, I. Smolkova","doi":"10.17150/2500-4255.2021.15(5).613-623","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(5).613-623","url":null,"abstract":"The prosecutor plays a special role in counteracting crime, being the public officer whom the state made responsible for coordinating the activities of all law enforcement bodies, as well as for the legality and validity of criminal prosecution against persons who committed crimes. Today, alongside the legal model of the prosecutor’s activity provided for in the Criminal Procedure Code of the Russian Federation according to which the prosecutor performs the function of criminal prosecution nominally and is, in fact, removed from the participation in the pre-trial stages of the criminal process, there has also developed a rather autonomous real-life model of the prosecutor’s activities. In practice, the prosecutor still has an opportunity to influence the decisions regarding the initiation of a criminal case and indictment at the stage of preliminary investigation. The study of a prosecutor’s participation in the pre-trial proceedings, a survey of prosecutors, investigators and inquiry offices made it possible to conclude that rights and legal interests of the participants in the process are often sacrificed for the sake of indicators of the effectiveness of criminal prosecution and crime solving rates. The authors analyze the causes of this situation and reveal the drawbacks in the current normative model of the prosecutor’s activity. This analysis allowed them to conclude that there should be no conflict between such determinants of a prosecutor’s activity as counteracting crime and ensuring the rights of the participants of criminal proceedings if the legal model of the prosecutor’s activity is well-considered and carefully drawn. The lawmakers should see their task in finding a reasonable and clear balance between the abovementioned values; the absence of such a balance will inevitably result in a repressive approach to crime counteraction, which is absolutely unacceptable for the modern legal state. The authors describe the factors which, if taken into account, will make it possible to eliminate key problems of the legal model of the prosecutor’s work as well as the distortions and errors in its enforcement. They make a number of suggestions aimed at designing a model of the prosecutor’s activities that would contribute to effective crime counteraction without violations against rights and legal interests of persons in the sphere of criminal proceedings.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"5 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77134633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).442-455
Konstantin Obrazhiev
The author singles out constituent features of a continuing crime: 1) a continuing crime, although legally completed, is happening continuously until its actual completion; 2) a continuing action has a complex two-element structure: the first element of the objective side of a continuing crime is the action or inaction of the guilty person that legally constitutes a crime, and the second element is the subsequent continuous behavior that «stretches» the objective side of the continuing crime in time; 3) a continuing crime is producing a non-stop destructive effect on the object of criminal law protection, and the long-term deformation of this object happens because of the action itself, not the consequences caused by it; 4) by committing a continuing crime, the person preserves conscious control over the action after its legal completion, regulates his behavior, controls the process of inflicting harm on the object of criminal law protection, which makes it possible to recognize the person as active (non-active) in the criminal law sense; 5) only a crime with a formal construct of corpus delicti can be continuing. The abovementioned features together could act as reliable criteria for determining the chronological boundaries of specific criminal actions, as a key to resolving theoretical disputes and law enforcement problems connected with classifying a certain action as continuing. The article stresses that the permanent character of a continuing crime cannot be explained through the prism of the theory of a continuing criminal condition. Such an interpretation of a continuing crime, common in Russian and foreign research, contradicts the established tenets of the classical theory of crime. Only an act in the form of action or inaction can be recognized as a continuing crime, but not a state, situation, or status. Based on this, the author gives a critical assessment of Art. 210.1 of the Criminal Code of the Russian Federation that provides for the liability for holding the highest position in a criminal hierarchy. The objective side of a continuing crime has the following manifestations: 1) continuing criminal inaction; 2) a crime legally completed by an action, and continuing through inaction; 3) continuing action. Based on this, the author states that the description of a continuing crime contained in the Decree of the Plenary Session of the Supreme Court of the USSR of March 4, 1929 No. 23 (edition of the Decree of the Plenary Session of March 14, 1963, No. 1) should be specified.
{"title":"Legal Nature and Features a Continuing Crime","authors":"Konstantin Obrazhiev","doi":"10.17150/2500-4255.2021.15(4).442-455","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).442-455","url":null,"abstract":"The author singles out constituent features of a continuing crime: 1) a continuing crime, although legally completed, is happening continuously until its actual completion; 2) a continuing action has a complex two-element structure: the first element of the objective side of a continuing crime is the action or inaction of the guilty person that legally constitutes a crime, and the second element is the subsequent continuous behavior that «stretches» the objective side of the continuing crime in time; 3) a continuing crime is producing a non-stop destructive effect on the object of criminal law protection, and the long-term deformation of this object happens because of the action itself, not the consequences caused by it; 4) by committing a continuing crime, the person preserves conscious control over the action after its legal completion, regulates his behavior, controls the process of inflicting harm on the object of criminal law protection, which makes it possible to recognize the person as active (non-active) in the criminal law sense; 5) only a crime with a formal construct of corpus delicti can be continuing. \u0000The abovementioned features together could act as reliable criteria for determining the chronological boundaries of specific criminal actions, as a key to resolving theoretical disputes and law enforcement problems connected with classifying a certain action as continuing. \u0000The article stresses that the permanent character of a continuing crime cannot be explained through the prism of the theory of a continuing criminal condition. Such an interpretation of a continuing crime, common in Russian and foreign research, contradicts the established tenets of the classical theory of crime. Only an act in the form of action or inaction can be recognized as a continuing crime, but not a state, situation, or status. Based on this, the author gives a critical assessment of Art. 210.1 of the Criminal Code of the Russian Federation that provides for the liability for holding the highest position in a criminal hierarchy. \u0000The objective side of a continuing crime has the following manifestations: 1) continuing criminal inaction; 2) a crime legally completed by an action, and continuing through inaction; 3) continuing action. Based on this, the author states that the description of a continuing crime contained in the Decree of the Plenary Session of the Supreme Court of the USSR of March 4, 1929 No. 23 (edition of the Decree of the Plenary Session of March 14, 1963, No. 1) should be specified.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90712420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).495-501
S. Kornakova, Ekaterina Zavgorodnevа
The authors analyze the opinions of scholars about the correlations between the categories «corpus delicti» and «subject of proof». The main object of their criticism is the idea, supported by some scholars, that the elements of corpus delicti equal the circumstances to be proven that are included in the key fact. The authors use the logical criterion to demonstrate that this claim is unsubstantiated. The circumstances stated in Clauses 1 and 2, Part 1, Art. 73 of the Criminal Procedure Code of the Russian Federation characterize the key features of corpus delicti only conditionally. In this connection, the key fact is the aggregate of factual circumstances that constitutes the basis of corpus delicti. In the logical aspect, the qualification of a crime is a syllogistic inference, according to which, if the essential features of the action under investigation coincide with the features of the concept of a specific crime as described in criminal law, then this crime becomes the concept of this action. According to the authors, from this standpoint it is possible to discuss not the equivalence of circumstances to be proven and corpus delicti, but only the equivalence of their essential features as determined by criminal law. They point out the specific character of criminal law and process terminology that also does not make it possible to equate the categories «corpus delicti» and «subject of proof». The significance of the existence of a formulated subject of proof in criminal procedure law and its interconnection with corpus delicti is demonstrated. It is concluded that proof in a criminal case is based on certain knowledge, which performs a methodological function. In this connection, the subject of proof, in the gnoseological sense, is a program of criminal procedure activities determined by the lawmaker. The norms of criminal law determined the parameters of criminal procedure proving, so the subject of proof is based on the criminal law characteristic of the action but does not equal it. The circumstances of the case, determined in the process of proving, are correlated with the norms of criminal law with the purpose of possible criminal law qualification of the action. Corpus delicti, determined in the criminal law, and the subject of proof, formulated in the criminal procedure law, ensure strict certainly and specification of the process of proving carried out by the preliminary investigation bodies and the court.
{"title":"Corpus Delicti and the Subject of Proof: to the Discussion of the Relationship Between the Concepts","authors":"S. Kornakova, Ekaterina Zavgorodnevа","doi":"10.17150/2500-4255.2021.15(4).495-501","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).495-501","url":null,"abstract":"The authors analyze the opinions of scholars about the correlations between the categories «corpus delicti» and «subject of proof». The main object of their criticism is the idea, supported by some scholars, that the elements of corpus delicti equal the circumstances to be proven that are included in the key fact. The authors use the logical criterion to demonstrate that this claim is unsubstantiated. The circumstances stated in Clauses 1 and 2, Part 1, Art. 73 of the Criminal Procedure Code of the Russian Federation characterize the key features of corpus delicti only conditionally. In this connection, the key fact is the aggregate of factual circumstances that constitutes the basis of corpus delicti. \u0000In the logical aspect, the qualification of a crime is a syllogistic inference, according to which, if the essential features of the action under investigation coincide with the features of the concept of a specific crime as described in criminal law, then this crime becomes the concept of this action. According to the authors, from this standpoint it is possible to discuss not the equivalence of circumstances to be proven and corpus delicti, but only the equivalence of their essential features as determined by criminal law. They point out the specific character of criminal law and process terminology that also does not make it possible to equate the categories «corpus delicti» and «subject of proof». \u0000The significance of the existence of a formulated subject of proof in criminal procedure law and its interconnection with corpus delicti is demonstrated. It is concluded that proof in a criminal case is based on certain knowledge, which performs a methodological function. In this connection, the subject of proof, in the gnoseological sense, is a program of criminal procedure activities determined by the lawmaker. The norms of criminal law determined the parameters of criminal procedure proving, so the subject of proof is based on the criminal law characteristic of the action but does not equal it. The circumstances of the case, determined in the process of proving, are correlated with the norms of criminal law with the purpose of possible criminal law qualification of the action. Corpus delicti, determined in the criminal law, and the subject of proof, formulated in the criminal procedure law, ensure strict certainly and specification of the process of proving carried out by the preliminary investigation bodies and the court.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89808169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).434-441
T. Basova, A. Subachev
There is a general rule according to which if the claims of some creditors on the debtor’s property are knowingly satisfied to the detriment of other creditors, it constitutes an illegal action in case of bankruptcy provided that such an action inflicted major damage. In its turn, the size of the inflicted damage coincides with the size of satisfied claims minus the share that would have been due to the creditors who satisfied their claims this way if the insolvency estate has been distributed according to the insolvency law. At the same time, the corresponding crime may be committed not only through the due performance of an obligation, but also through the termination of bail bonds on other grounds. When the authors analyze illegal actions in cases of bankruptcy committed through the provision of release property, they conclude that if the market value of the release property exceeds the size of terminated obligations by the sum equaling major damage, the actions should be classified as multiple offences under Parts 1, 2, Art. 195 of the Criminal Code of the Russian Federation. As for the order of determining the size of damage when satisfying claims secured by the debtor’s property, the authors pay attention to the privileged status of the pledge holder: a part of proceeds from the sale of pledged property must be used to satisfy their claims on the principal plus interest. Thus, for the corresponding part of the value of the object of pledge, no damage is inflicted on other creditors in connection with satisfying the claims of the pledgee. In some circumstances, the claims of the pledge holder are satisfied by a part of the proceeds from the sale of the object of pledge designated for the satisfaction of other claims, which cannot be overlooked when determining the size of the inflicted damage. The exceptions are the cases when, as a result of satisfying the claims of the pledgee, their claims on compensating damages and (or) paying financial sanctions were also satisfied. The satisfaction of the abovementioned claims in the size equaling major damage constitutes a crime under Part 2, Art. 195 of the Criminal Code of the Russian Federation. At the same time, if the difference between the size of pledge requirements terminated by the provision of release property, and the value of the transferred assets equals major damage, the actions must be classified as multiple offences under Parts 1, 2, Art. 195 of the Criminal Code of the Russian Federation.
{"title":"Termination of Dollateralized Obligations as an Illegal Action in Case of Bankruptcy: Problems of Criminal Law Assessment","authors":"T. Basova, A. Subachev","doi":"10.17150/2500-4255.2021.15(4).434-441","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).434-441","url":null,"abstract":"There is a general rule according to which if the claims of some creditors on the debtor’s property are knowingly satisfied to the detriment of other creditors, it constitutes an illegal action in case of bankruptcy provided that such an action inflicted major damage. In its turn, the size of the inflicted damage coincides with the size of satisfied claims minus the share that would have been due to the creditors who satisfied their claims this way if the insolvency estate has been distributed according to the insolvency law. At the same time, the corresponding crime may be committed not only through the due performance of an obligation, but also through the termination of bail bonds on other grounds. When the authors analyze illegal actions in cases of bankruptcy committed through the provision of release property, they conclude that if the market value of the release property exceeds the size of terminated obligations by the sum equaling major damage, the actions should be classified as multiple offences under Parts 1, 2, Art. 195 of the Criminal Code of the Russian Federation. As for the order of determining the size of damage when satisfying claims secured by the debtor’s property, the authors pay attention to the privileged status of the pledge holder: a part of proceeds from the sale of pledged property must be used to satisfy their claims on the principal plus interest. Thus, for the corresponding part of the value of the object of pledge, no damage is inflicted on other creditors in connection with satisfying the claims of the pledgee. In some circumstances, the claims of the pledge holder are satisfied by a part of the proceeds from the sale of the object of pledge designated for the satisfaction of other claims, which cannot be overlooked when determining the size of the inflicted damage. The exceptions are the cases when, as a result of satisfying the claims of the pledgee, their claims on compensating damages and (or) paying financial sanctions were also satisfied. The satisfaction of the abovementioned claims in the size equaling major damage constitutes a crime under Part 2, Art. 195 of the Criminal Code of the Russian Federation. At the same time, if the difference between the size of pledge requirements terminated by the provision of release property, and the value of the transferred assets equals major damage, the actions must be classified as multiple offences under Parts 1, 2, Art. 195 of the Criminal Code of the Russian Federation.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"5 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72520757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).466-475
A. Petrukhina, V. Popova
Measures of criminal procedure compulsion should, in the first place, ensure the enforcement of criminal procedure on a criminal case, i.e. prevent the suspect or the accused person from going into hiding, committing a new crime, continuing criminal activities, influencing in any way other participants of the criminal process or the proceedings. The Criminal Procedure Code of the Russian Federation foresees bail as one of preventive measure alternative to detention. Bail is not often used in the Russian Federation. According to statistical data from the Court Department of the Supreme Court for the last five years, the number of bails in Russia is negligibly small compared to other preventive measures. On April 18, 2018, the federal law № 72-ФЗ was enacted to change this situation; it did not only introduce changes in the existing preventive measures, but added a new measure prohibiting the performance of certain actions. Such a component of the restriction measure under consideration as the object of bail was examined for the first time in the light of a radical renewal of the existing legal model through the development of an alternative, principally new concept based on the economic interests of the subject of criminal procedure relations which borrowed its key features from the institutes of civil and financial law. It is difficult to notice the impact of this improvement in practice. When bail was chosen as a restrictive measure, the number of cases not only stayed at the same level, but even went down. Due to this, it is relevant to research an opportunity of combining bail with the preventive measure of prohibiting certain actions. A comprehensive research of bail in Russian and foreign law allowed the authors to formulate recommendations on possible improvements in the mechanism of legal regulation of bail in modern criminal court procedure. It is suggested that a number of gaps in legislation should be bridged, specifically, the list of goals of bail included in the law should be changed and the existing goal of preventing new crimes should be supplemented by the following phrase: «Preventing the accused (the suspect) from continuing the crime that began earlier or committing a new crime». It is also suggested that Part 2.1 should be introduced in Art. 106 of the Criminal Procedure Code of the Russian Federation, which will make it possible to use bail to compensate for the material damage inflicted by the crime in case of a guilty verdict. The authors believe that it is necessary to improve the effectiveness of such a preventive measure as bail in the Russian Federation, thus reducing the number of cases when incarceration was chosen as a restriction measure for crimes of small and medium gravity.
{"title":"Modernization of Bail as a Component of Criminal Procedure Restraint in Russia and Abroad","authors":"A. Petrukhina, V. Popova","doi":"10.17150/2500-4255.2021.15(4).466-475","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).466-475","url":null,"abstract":"Measures of criminal procedure compulsion should, in the first place, ensure the enforcement of criminal procedure on a criminal case, i.e. prevent the suspect or the accused person from going into hiding, committing a new crime, continuing criminal activities, influencing in any way other participants of the criminal process or the proceedings.\u0000The Criminal Procedure Code of the Russian Federation foresees bail as one of preventive measure alternative to detention. Bail is not often used in the Russian Federation. According to statistical data from the Court Department of the Supreme Court for the last five years, the number of bails in Russia is negligibly small compared to other preventive measures. On April 18, 2018, the federal law № 72-ФЗ was enacted to change this situation; it did not only introduce changes in the existing preventive measures, but added a new measure prohibiting the performance of certain actions. \u0000Such a component of the restriction measure under consideration as the object of bail was examined for the first time in the light of a radical renewal of the existing legal model through the development of an alternative, principally new concept based on the economic interests of the subject of criminal procedure relations which borrowed its key features from the institutes of civil and financial law. It is difficult to notice the impact of this improvement in practice. When bail was chosen as a restrictive measure, the number of cases not only stayed at the same level, but even went down. \u0000Due to this, it is relevant to research an opportunity of combining bail with the preventive measure of prohibiting certain actions. A comprehensive research of bail in Russian and foreign law allowed the authors to formulate recommendations on possible improvements in the mechanism of legal regulation of bail in modern criminal court procedure. It is suggested that a number of gaps in legislation should be bridged, specifically, the list of goals of bail included in the law should be changed and the existing goal of preventing new crimes should be supplemented by the following phrase: «Preventing the accused (the suspect) from continuing the crime that began earlier or committing a new crime». It is also suggested that Part 2.1 should be introduced in Art. 106 of the Criminal Procedure Code of the Russian Federation, which will make it possible to use bail to compensate for the material damage inflicted by the crime in case of a guilty verdict. The authors believe that it is necessary to improve the effectiveness of such a preventive measure as bail in the Russian Federation, thus reducing the number of cases when incarceration was chosen as a restriction measure for crimes of small and medium gravity.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"2 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84794413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).476-483
Z. Ayupova, А. Seralieva, B. Saparov
The article discusses the problems of legal policy of the Republic of Kazakhstan aimed at counteracting terrorism and religious extremism. The goal of research is the development of political and legal mechanisms of preventing terrorism and religious extremism in modern Kazakh society, the analysis of key reasons behind the spread of extremist attitudes among some believers, the study of key factors behind the extremist religious ideology. The methodological basis of this research is the dialectic method freed from materialistic or idealistic monism and grounded in pluralistic, multi-linear interdependence of all political and legal phenomena. The authors used formal-legal and comparative-legal methods. They researched the State Program of Counteracting Religious Extremism and Terrorism in the Republic of Kazakhstan in 2018–2022, which foresees predominantly preventive measures. The key task of ensuring state security in a rule-of-law state with a well-developed legal system, which the Republic of Kazakhstan is, mainly consists in the development and successful enforcement of legal mechanisms of governance. In the modern world, religious and political extremism remains a phenomenon that destroys the basis of state power and the system of state governance, instigates hatred of representatives of other religious denominations, and contradicts the standards of morality and public behavior. Terrorism and religious extremism are a real threat to stability not only for the Republic of Kazakhstan, but for all countries of the world. The improvement of basic aspects in the criminal sphere, including the prevention of specific terrorism-related crimes, remains very topical today. The classification of criminal law norms connected with counteracting terrorism and religious extremism is based on a number of key indicators of criminal policy and fundamental criminal law institutes, whose description constitutes the main body of this article.
{"title":"Legal Policy of the Republic of Kazakhstan in Counteracting Terrorism and Religious Extremism","authors":"Z. Ayupova, А. Seralieva, B. Saparov","doi":"10.17150/2500-4255.2021.15(4).476-483","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).476-483","url":null,"abstract":"The article discusses the problems of legal policy of the Republic of Kazakhstan aimed at counteracting terrorism and religious extremism. The goal of research is the development of political and legal mechanisms of preventing terrorism and religious extremism in modern Kazakh society, the analysis of key reasons behind the spread of extremist attitudes among some believers, the study of key factors behind the extremist religious ideology. The methodological basis of this research is the dialectic method freed from materialistic or idealistic monism and grounded in pluralistic, multi-linear interdependence of all political and legal phenomena. The authors used formal-legal and comparative-legal methods. They researched the State Program of Counteracting Religious Extremism and Terrorism in the Republic of Kazakhstan in 2018–2022, which foresees predominantly preventive measures. The key task of ensuring state security in a rule-of-law state with a well-developed legal system, which the Republic of Kazakhstan is, mainly consists in the development and successful enforcement of legal mechanisms of governance. \u0000In the modern world, religious and political extremism remains a phenomenon that destroys the basis of state power and the system of state governance, instigates hatred of representatives of other religious denominations, and contradicts the standards of morality and public behavior. Terrorism and religious extremism are a real threat to stability not only for the Republic of Kazakhstan, but for all countries of the world. The improvement of basic aspects in the criminal sphere, including the prevention of specific terrorism-related crimes, remains very topical today. The classification of criminal law norms connected with counteracting terrorism and religious extremism is based on a number of key indicators of criminal policy and fundamental criminal law institutes, whose description constitutes the main body of this article.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"11 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85840558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).456-465
A. Bimbinov, D. Stage
Negative consequences of the actions of medical professionals have always been subject to controversial assessment from the legal standpoint. There were periods in Russian history when doctors were prosecuted even without establishing their guilt first, and the periods when doctors were not held responsible at all for the violations that they committed. Currently, medical and pharmaceutical work is a complicated process of performing professional functions connected with the observance of established standards and requirements of its organization. Most medical tests and manipulations of prevention, research, diagnostic, treatment or rehabilitation character are regulated by formal protocols which could, in some cases, prevent a qualified doctor from saving a patient’s life and in others — inflict forced harm on their health. Both of these situations require a legal assessment of the actions, the mechanism of which has not yet been fully determined. This circumstance could lead to a criminal prosecution of a medical professional whose fault is absent (or non-obvious). On the other hand, a structurally complex professional activity, for which there are no recognized methods of legal assessment, creates preconditions for various violations and abuses on the part of medical professionals. Changing relationships between a doctor and a patient, as well as the commercialization of modern medical practices have made the healthcare system one of the most delicto- and even criminally-oriented. These factors act as causes for the growing complexity of legislation (in the wide sense of the word) on criminal liability of medical professionals and the controversial law enforcement practice which, in its turn, leads to the interest of researchers in these problems. The results of such research often remain unconnected with other achievements of the criminal law science; due to this, it is necessary to study the development of law, including the practice of law enforcement and the doctrine, on criminal liability of medical professionals – medical criminal law. Taking into consideration that such a sub-branch of law is not traditional for Russian science, the authors present the results of researching the development of medical criminal law not only in Russia, but also in Germany, where this sphere of law has long been established as independent.
{"title":"The Development of Medical Criminal Law in Germany and in Russia","authors":"A. Bimbinov, D. Stage","doi":"10.17150/2500-4255.2021.15(4).456-465","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).456-465","url":null,"abstract":"Negative consequences of the actions of medical professionals have always been subject to controversial assessment from the legal standpoint. There were periods in Russian history when doctors were prosecuted even without establishing their guilt first, and the periods when doctors were not held responsible at all for the violations that they committed. Currently, medical and pharmaceutical work is a complicated process of performing professional functions connected with the observance of established standards and requirements of its organization. Most medical tests and manipulations of prevention, research, diagnostic, treatment or rehabilitation character are regulated by formal protocols which could, in some cases, prevent a qualified doctor from saving a patient’s life and in others — inflict forced harm on their health. Both of these situations require a legal assessment of the actions, the mechanism of which has not yet been fully determined. This circumstance could lead to a criminal prosecution of a medical professional whose fault is absent (or non-obvious). On the other hand, a structurally complex professional activity, for which there are no recognized methods of legal assessment, creates preconditions for various violations and abuses on the part of medical professionals. Changing relationships between a doctor and a patient, as well as the commercialization of modern medical practices have made the healthcare system one of the most delicto- and even criminally-oriented. \u0000These factors act as causes for the growing complexity of legislation (in the wide sense of the word) on criminal liability of medical professionals and the controversial law enforcement practice which, in its turn, leads to the interest of researchers in these problems. The results of such research often remain unconnected with other achievements of the criminal law science; due to this, it is necessary to study the development of law, including the practice of law enforcement and the doctrine, on criminal liability of medical professionals – medical criminal law. Taking into consideration that such a sub-branch of law is not traditional for Russian science, the authors present the results of researching the development of medical criminal law not only in Russia, but also in Germany, where this sphere of law has long been established as independent.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"39 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84274666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).426-433
A. Shesler, Alexandra Vaselovskaya
The authors argue that the danger posed by a person, used by the court as a basis for authorizing compulsive medical measures, should be considered to be public danger because this person could commit a new infringement on public relations protected by criminal law. The analysis of the practice of court decisions on compulsory medical measures in 2010–2020 in Tomsk and Novosibirsk Regions is use to develop criteria for determining the content of public danger posed by such a person. These criteria are the features of a publicly dangerous act that has already been committed (its focus on relations protected by criminal law, the degree on harm inflicted on these relations, the number of previously committed identical or similar acts), as well as the symptoms of a mental disorder which testify that a person has got a violent, mercenary or violent-mercenary motivation. The differentiation of compulsory medical measures applied to a person is based on the degree of public danger that this person poses. It is suggested that the probability of a person’s committing a new publicly dangerous act with a violent or mercenary-violent motivation should be viewed as a basis for sending that person to a psychiatric hospital for compulsory treatment. As for using this treatment for persons who are likely to commit new publicly dangerous act with a mercenary motivation, it is suggested that the decision should depend on the regularity of committing actions with such a motivation because the public danger is posed not so much by the gravity of the action as by its repeat character.
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Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).484-494
Konstantin Korablin, A. Ostapenko
The authors analyze the historical experience of the emergence and development of the science of penitentiary (prison) law — prison studies — as an independent branch of Russian criminal law that was formed in the second half of the 19th — beginning of the 20th centuries. They pay special attention to the institutionalization of the punishment of incarceration whose theoretical foundation was laid by outstanding representatives of Russian pre-revolutionary prison studies. In this historical period, famous legal scholars, practitioners, public figures, political and fiction writers studied problems of the organization and functioning of the Russian prison service, they offered suggestions on its optimization, on improving the effectiveness of its functioning regarding the implementation of the basic principles of punishment for persons who committed illegal actions. It is noted that in the history of Russian criminal law, the institute of punishment was studied by many representatives of legal science and practice who were not only outstanding scholars, but also highly effective organizers of prison work. However even today, in the process of establishing a civilized, humane, international law- and norm-based penitentiary system in Russia, there is an acute lack of complex research which would offer a comprehensive description and characteristic of the contemporary science of penitentiary law that became unofficially known as prison studies in the second half of the 19th — first half of the 20th centuries. Taking into account the historical past of our country, it is evident that a complex approach to researching the fundamental principles of the punishment of incarceration contributes to the further development of Russia legal science, to the objective assessment of the role and place of penitentiary institutions in the system of especially authorized state bodies that possess an exclusive right to counteracting crime. The studied empirical materials allowed the authors to conclude that it is necessary to analyze and widely use this rich historical legacy, which would help contemporary legal research and practice gain new knowledge in a dynamic and consistent way.
{"title":"Developing the Conceptual Foundations for the Science of Penitentiary (Prison) Law — Prison Studies — as an Independent Branch of Russian Criminal Law (Second Half of the XIX — Beginning of the XX Century)","authors":"Konstantin Korablin, A. Ostapenko","doi":"10.17150/2500-4255.2021.15(4).484-494","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).484-494","url":null,"abstract":"The authors analyze the historical experience of the emergence and development of the science of penitentiary (prison) law — prison studies — as an independent branch of Russian criminal law that was formed in the second half of the 19th — beginning of the 20th centuries. They pay special attention to the institutionalization of the punishment of incarceration whose theoretical foundation was laid by outstanding representatives of Russian pre-revolutionary prison studies. In this historical period, famous legal scholars, practitioners, public figures, political and fiction writers studied problems of the organization and functioning of the Russian prison service, they offered suggestions on its optimization, on improving the effectiveness of its functioning regarding the implementation of the basic principles of punishment for persons who committed illegal actions. It is noted that in the history of Russian criminal law, the institute of punishment was studied by many representatives of legal science and practice who were not only outstanding scholars, but also highly effective organizers of prison work. However even today, in the process of establishing a civilized, humane, international law- and norm-based penitentiary system in Russia, there is an acute lack of complex research which would offer a comprehensive description and characteristic of the contemporary science of penitentiary law that became unofficially known as prison studies in the second half of the 19th — first half of the 20th centuries. Taking into account the historical past of our country, it is evident that a complex approach to researching the fundamental principles of the punishment of incarceration contributes to the further development of Russia legal science, to the objective assessment of the role and place of penitentiary institutions in the system of especially authorized state bodies that possess an exclusive right to counteracting crime. The studied empirical materials allowed the authors to conclude that it is necessary to analyze and widely use this rich historical legacy, which would help contemporary legal research and practice gain new knowledge in a dynamic and consistent way.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"19 12","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72833066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-10DOI: 10.17150/2500-4255.2021.15(4).413-418
O. Gribunov, I. Smirnova
On July 12, 2021 the community of legal scholars celebrated the 90th anniversary of Honored Lawyer of the Russian Federation, Doctor of Law, Professor Grigory Stepanovich Gaverov. This article presents an overview of the scientific career of a famous criminal law scholar, the author of a substantial number of research publications on a wide range of different aspects of criminal law, its effectiveness, and problems of crime and punishment, who made an invaluable contribution to the criminal law theory and practical work of the law enforcement bodies. The authors describe key milestones of the career path of Professor G.S. Gaverov, present an overview of his major achievements in the spheres of research and teaching, as well as educational methodology. They prove that the scientific school of criminal law was formed and outline the scope of major scientific interests of G.S. Gaverov which widened as Grigory Stepanovich acted as mentor for postgraduate researchers who later successfully defended their Ph.D. in Law theses. Special attention is paid to the legacy of G.S. Gaverov in the area of educational methodology, which kept up with the major developments of criminal law. The scholar’s talents in the sphere of publicistic writing are highlighted. Special place is given to an overview of a research conference «Scientific heritage of Irkutsk scholars of criminal law» organized in Baikal State University on June 11–12, 2021 in honor of the 90th anniversaries of two outstanding Irkutsk scholars — Honored Lawyer of the Russian Federation, Doctor of Law, Professor G.S. Gaverov and Doctor of Law, Professor V.Ya. Rybalskaya.
{"title":"Scientific Heritage of Professor G.S. Gaverov in the Science of Criminal Law","authors":"O. Gribunov, I. Smirnova","doi":"10.17150/2500-4255.2021.15(4).413-418","DOIUrl":"https://doi.org/10.17150/2500-4255.2021.15(4).413-418","url":null,"abstract":"On July 12, 2021 the community of legal scholars celebrated the 90th anniversary of Honored Lawyer of the Russian Federation, Doctor of Law, Professor Grigory Stepanovich Gaverov. This article presents an overview of the scientific career of a famous criminal law scholar, the author of a substantial number of research publications on a wide range of different aspects of criminal law, its effectiveness, and problems of crime and punishment, who made an invaluable contribution to the criminal law theory and practical work of the law enforcement bodies. The authors describe key milestones of the career path of Professor G.S. Gaverov, present an overview of his major achievements in the spheres of research and teaching, as well as educational methodology. They prove that the scientific school of criminal law was formed and outline the scope of major scientific interests of G.S. Gaverov which widened as Grigory Stepanovich acted as mentor for postgraduate researchers who later successfully defended their Ph.D. in Law theses. Special attention is paid to the legacy of G.S. Gaverov in the area of educational methodology, which kept up with the major developments of criminal law. The scholar’s talents in the sphere of publicistic writing are highlighted. Special place is given to an overview of a research conference «Scientific heritage of Irkutsk scholars of criminal law» organized in Baikal State University on June 11–12, 2021 in honor of the 90th anniversaries of two outstanding Irkutsk scholars — Honored Lawyer of the Russian Federation, Doctor of Law, Professor G.S. Gaverov and Doctor of Law, Professor V.Ya. Rybalskaya.","PeriodicalId":43975,"journal":{"name":"Russian Journal of Criminology","volume":"14 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89742938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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