Fantastic Insignificance and Where It Lives

BASICS

The institution of “insignificance” as a basis for exemption from liability is characteristic of tort law, that is, in our country - criminal and administrative law.

A crime is a socially dangerous act committed guilty of guilt, prohibited by this Code under threat of punishment. Accordingly, an action (inaction), although formally containing signs of any act provided for by the Criminal Code of the Russian Federation, but due to its insignificance, does not pose a public danger (Article 14 of the Criminal Code of the Russian Federation), is not a crime.

An administrative offense is an unlawful, guilty action (inaction) of an individual or legal entity for which administrative liability is established by this Code or the laws of the constituent entities of the Russian Federation on administrative offenses (Article 2.1 KRFObAP).

Accordingly, if the administrative offense committed is of minor significance, the judge, body, official authorized to resolve the case of an administrative offense may release the person who committed the administrative offense from administrative liability and limit himself to an oral remark (Article 2.9 of the KRFOBAP).

As can be seen from the legal definitions, it is the criminal law that contains the only criterion by which it is possible to establish the insignificance of an act - this is the fact that the act does not pose a public danger.

As judicial practice shows, the same approach (criterion) is applied in cases of administrative offenses.

But it is precisely in the legal definition of insignificance that the problems in the enforcement of this institution lie.

I bring to the attention of Legal Professionals, all those who are interested and even those who are simply passing by my thoughts. I apologize in advance for the fact that in the process of reasoning my thoughts will “jump from place to place” (change the angle of view on the problem; run ahead; go back) - after all, a diamond is cut from all sides at once, and not on each edges separately; I also apologize in advance for the fact that my conclusions can (and will be) ambiguous and non-specific: I’m not teaching, I’m just thinking, and I invite you to join me.

BUKI

Let me remind you that the signs of an offense are: object, that is, social relations protected by law; the objective side, that is, the commission of certain actions or inaction; the subject, that is, the person performing the act, and the subjective side, that is, the mental (conscious and volitional) attitude of the subject to the act (guilt).

And to what element of the offense is the assessment of insignificance tied?

The correct answer is... but there will be no correct answer here (these are my thoughts, not the absolute truth). Why can’t we give an unambiguous, simple and understandable answer to everyone? Firstly, because, as follows from the very construction of the crime, the social danger of the act is not included in it. Secondly, because, at the same time, social danger is contained in all (blurred by all) characteristics of the composition: a generally dangerous method of action is clearly included in the objective side, the significance of the protected right (object) is clearly described by the very establishment of punishment for encroachment on the object; base (criminal) motives (for example, self-interest, envy, lust) are clearly classified as subjective.

It is obvious that the concepts of “punishable act”, “offense”, “corpus delicti” and “social danger” are extremely complexly intertwined, partially including (but not completely absorbing) each other, and interacting in various ways.

If we take the legal definition of a crime in Part 1 of Art. 14 of the Criminal Code of the Russian Federation, it is easy to see that the criminality of an act is determined through its punishability. A very simple, understandable and easily accessible way of teaching people to behave in the right way: Everything that is punishable is prohibited as a crime; everything that is not punishable is permitted as permissible.

Like all simple solutions, this approach is fundamentally wrong. After all, the task of criminal (more broadly, tort) law is not to punish for committing (non-committing) certain actions, the task is to protect certain social legal relations (EXAMPLE of my Teacher Konstantin Lavrentievich Akoev: in the sign “Don’t interfere - KILL!” the main thing is not “Kill”, but “Don’t interfere!”). But they can change over time (and do); and the established punishment (and therefore crime) may not keep up with such changes (or, on the contrary, significantly ahead of them).

I will give a simple example number one: if the criminality of an act is eliminated by a new law, then criminal prosecution must be terminated, even if the act was committed during the period the law was in force. If the criminality of an act is introduced by a new law, then the act is subject to prosecution after the introduction of punishment. The closest example to currently practicing lawyers is the story of long-suffering beatings, which were first a criminal offense, then became an administrative offense; then they became a crime again, but not all of them.

Let me give you a simple example number two: if the criminality of an act is determined by law, but society does not consider the act a crime, then responsibility still occurs. The most obvious example is the distribution of pornography; I remember how in the memoirs of one of the “farmers” I was touched by the phrase how, upon leaving the colony where he was imprisoned for distributing pornography (in the form of a “home” video showing of “The Greek Fig Tree” in 1988), he was simply amazed by the giant “Emmanueli” poster for afternoon and evening cinema shows (in 1992). On the website “Law. Forum of Prosecutors and Investigators” the topic “Pornography. I'm surprised." Many of us (colleagues, don’t blush!) could also try to make a “home video” (technology doesn’t stand still), and even share (or exchange) it (morality in society doesn’t stand still, and such actions are, in principle, very not condemned). But there is still a punishment for this.

Let me give you a simple example number three: there is no punishment for the act (and therefore its criminality); although public opinion favors such responsibility. The most obvious example is the requirement to limit the constitutional rights of those persons who wish to participate in government, for example, the requirement for deputies of representative bodies not to have a second (third, etc.) citizenship, not to have financial interests abroad, the imposition of additional obligations to directly use the results of the innovations they introduce (for example, limiting their monetary allowance to the minimum amounts established by them), etc. There is a demand in society; these problems are discussed; they are condemnable (in moral terms). There is no punishment.

PS: as I indicated earlier, all simple examples (solutions) are incorrect. These three are also But they show well that it is wrong to determine the criminality of an act only through its established punishability.

As a matter of fact, the Constitutional Court of the Russian Federation spoke about this back in 1999, which, in the corresponding Resolution No. 11-P of July 15, 1999, interpreted the concept of proportionality when holding people accountable for committing a particular unlawful act. The Constitutional Court noted that this principle, “expressing the requirements of justice, presupposes the establishment of public legal responsibility only for a guilty act and its differentiation depending on the severity of the act, the size and nature of the damage caused, the degree of guilt of the offender and other significant circumstances that determine individualization in the application collections. The specified principles of bringing to responsibility apply equally to individuals and legal entities.” That is why in Part 2 of Art. 14 of the Criminal Code of the Russian Federation and it is said that a minor act formally contains all the signs of a crime! As my first RSO told me back in 1998: “the term “formally” cannot be used formally. Because if “formally” there is a crime, then it is necessary to formally prosecute and formally convict.”

DISCUSSION : since an article is being written for discussion, I propose to discuss the relationship between morality (moral principles), generally accepted (and therefore generally known) rules of behavior, and the law (in the form of normative behavior with punishment for deviation). Back in 1996, during a course in criminal law, I, as a student of the Northern Branch of the Law Institute of the Ministry of Internal Affairs of the Russian Federation, easily solved problems from the workshop, but since then I have come up with several questions to which I myself cannot give an unambiguous answer. Question one: can an Orthodox priest convince a devout samurai that suicide (harakiri) is a mortal sin? Question two: if in 1994 Wesley Snipes, as part of a promotional tour for the film “Destroyer,” had come to the glorious city of Stavropol, and had been killed by a student of the Stavropol State Medical Academy from the Republic of Ghana, according to the laws of which a blond black man with a blue eye

is a sorcerer who threatens the very existence of the Universe and therefore is subject to unconditional destruction, would this student have a CRIMINAL intent to kill?

CONCLUSION FIRST : only an act that actually took place can be insignificant. Based on the wording of Part 2 of Art. 14 of the Criminal Code of the Russian Federation, it is obvious that an act that was not committed cannot be insignificant (clause 1, part 1, article 24 of the Criminal Procedure Code of the Russian Federation). Also, an act in which there is no corpus delicti cannot be insignificant (clause 2, part 1, article 24 of the Code of Criminal Procedure of the Russian Federation).

Everything about criminal cases

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Minority of the crime

Procedural aspects of termination of a case due to insignificance

ILLUSTRATIONS from judicial practice

- 115 of the Criminal Code - minor harm to health, hair pulling, pushing and subsequent falling of the victim into a flowerbed (Resolution of the Presidium of the Supreme Court of the Republic of Sakha (Yakutia) in case No. 44u-69/2015).

- 158 of the Criminal Code - theft from a store of men's underpants. (Resolution of the Presidium of the Supreme Court of the Republic of Tatarstan No. 44U-284/2017). There are quite a few examples of theft - theft of pasta and several bottles of beer, theft of scrap metal, theft of perfume - the main thing is that the cost is slightly higher than 1000 rubles.

— 159.2 of the Criminal Code — fraud with social benefits. She provided a false income certificate to obtain the right to free meals for her daughter in the school canteen. Damage to the budget in the amount of 10,066 rubles. (Cassation ruling of the Supreme Court dated August 20, 2020 No. 15-UDP20-7-K1).

- 327 of the Criminal Code - use of forged documents: the woman used a fake medical report (although she had the same real one) in order to speed up the formal procedure for guardianship of a sick child. (Resolution of the Presidium of the Nizhny Novgorod Regional Court No. 44U-125/2018).

— 139 of the Criminal Code – violation of the inviolability of the home; the neighbor came in without asking from the open door of the apartment and took just one step inside (Resolution of the Presidium of the Stavropol Regional Court dated 09/05/2018 in case No. 44U-234/2018).

— 159.2 of the Criminal Code – fraud in receiving payments; the pensioner did not inform the Pension Fund that the grounds for the increased pension had disappeared and received payments, but then returned everything (Resolution of the Presidium of the Stavropol Regional Court dated November 28, 2013 in case No. 44у-747/2013).

- 222 of the Criminal Code (storage of weapons) - two old 9-mm cartridges, which the accused found by chance and, not having weapons, kept in the apartment without attaching any significance to it. (“Bulletin of judicial practice in criminal cases of the Sverdlovsk Regional Court (third quarter of 2017 (53))”

— 214 Criminal Code – vandalism; a minor drew “graffiti” with a marker in the train vestibule. (Resolution of the Presidium of the Moscow Regional Court dated March 11, 2015 No. 124 in case No. 44у-58/2015)

These are not isolated cases and many examples can be given.

Basically, cases are dismissed for crimes of minor and medium gravity. Which is quite understandable.

Minority under serious articles 105 of the Criminal Code (murder), 111 of the Criminal Code (grievous bodily harm), 131 of the Criminal Code (rape) is completely inapplicable. Which is also quite understandable.

What about 228, 228.1 CC

?

After all, it’s not uncommon for a student to be imprisoned for a handful of hemp leaves picked up in the garden. What about 228 and 228.1 of the Criminal Code:

Nothing good. Let us give a typical example of the court's motivation when the defense tries to refer to insignificance due to the size of the substance and the circumstances.

Example: Neither the type, nor the size of a narcotic drug, nor the fact of its seizure by police officers are defining features that reduce the public danger of an act related to the illicit trafficking of narcotic drugs and psychotropic substances, and cannot be regarded as formal signs of a crime. The crime is serious and affects the health of society. Such a crime cannot have any signs of insignificance. (Resolution of the Moscow City Court dated February 19, 2019 N 4у-0806/2019).

Thus, according to 228 and 228.1 of the Criminal Code, insignificance does not work. Almost.

Sometimes, the nature and volume of the substance can act as a mitigating circumstance (you can read more about this here: Volume of the drug

the drug may be a mitigating factor,
the nature of the drug
may be a mitigating factor).

In addition, you can find rare examples from related articles.

Example: 229 of the Criminal Code (drug smuggling): the convicted person, at the request of his mother, brought from abroad medicine containing a narcotic substance. (Resolution of the Presidium of the Bryansk Regional Court dated June 13, 2018 N 44U-52/2018).

That is, there are some glimmers of sympathy for life situations among the courts. But rarely.

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LEAD

Isn’t it some other kind of offense that an act that, due to its insignificance, is not a crime?

An extremely interesting question.

The Constitutional Court of the Russian Federation in its Determination of July 16, 2013 N 1162-o “On the refusal to accept for consideration the complaint of citizen Dmitry Ivanovich Filimonov about the violation of his constitutional rights by part two of Article 14 of the Criminal Code of the Russian Federation” indicated that Art. 14 of the Criminal Code of the Russian Federation, defining the general signs of a crime, establishes that a crime is recognized as a socially dangerous act committed guilty of guilt, prohibited by this Code under threat of punishment (part one), and an action (inaction) is not a crime, although formally containing signs of any act, provided for by this Code, but due to its insignificance, does not pose a public danger (part two). This rule makes it possible to distinguish crimes from other offenses and is aimed at implementing the principle of justice, according to which punishment and other measures of a criminal legal nature applied to a person who has committed a crime must be fair, i.e. correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator (part one of Article 6 of the Criminal Code of the Russian Federation). This ensures that law enforcement officials adequately assess the degree of social danger of the act, depending on the specific circumstances of the act. Such circumstances may take into account the amount of harm and the severity of the consequences, the degree of implementation of the criminal intent, the method of committing the crime, the role of the defendant in the crime committed in complicity, the presence of circumstances in the crime that entail a more severe punishment in accordance with the sanctions of the articles of the Special Part of the Criminal Code of the Russian Federation (clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 29, 2009 N 20 “On some issues of judicial practice in the appointment and execution of criminal punishment”). This does not preclude taking into account, when assessing the degree of social danger of an act, the significance for the victim of one or another benefit that served as the object of the attack.

Accordingly, a person who has committed a minor act is not subject to criminal liability, but - if there are grounds for this - may be brought to another type of legal liability (for example, administrative, disciplinary).

Thus, an act that is not criminal due to its insignificance may well be another offense, for example, an administrative one.

How to separate these two acts (non-criminal due to their insignificance, and punishable in a different order).

And here there is a judicial opinion: the same Constitutional Court of the Russian Federation in the Determination of October 26, 2022 N 2257-O “On the refusal to accept for consideration the complaint of citizen Taisiya Ivanovna Gafitulina about the violation of her constitutional rights by paragraph 1 of Article 1 of the Federal Law of July 3, 2016 No. 323-FZ “On amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation on improving the grounds and procedure for exemption from criminal liability” explained that the basis for criminal liability is, according to Article 8 of the Criminal Code of the Russian Federation, the commission of an act containing all signs of a crime provided for by this Code. The socially dangerous consequences of the crime committed - depending on the design of its composition: material or formal - may or may not be included among its mandatory features (Resolution of the Constitutional Court of the Russian Federation of April 7, 2015 N 7-P). At the same time, the absence of indications of such consequences in the disposition of the corresponding article of the Special Part of this Code as an element of the crime envisaged by it does not mean that the commission of this crime does not entail causing harm or a real threat of causing it. In the Russian legal system, a crime - unlike other offenses - is characterized by a criminal social danger, in the absence of which even an act that formally falls under the criteria of a criminal offense cannot be considered as such due to its insignificance (part two of Article 14 of the Criminal Code of the Russian Federation).

From these judicial rulings it is clear that the following types of acts can be committed (in relation to the topic of discussion):

1. a crime that is inherently criminally dangerous to society, and therefore cannot be punished in any way;
2. an act that is not criminal due to its insignificance, which is another offense, for example, an administrative one, and therefore not punishable criminally, but punishable administratively;
3. an act that is not criminal due to its insignificance, which at the same time does not entail administrative liability, and therefore cannot be punished at all;
4. and an administrative offense, which is also minor and therefore not punishable.

Do you feel how confusing everything is? And all because a very complex institution is described in just two lines, and even with unsuitable legal technique (although an alternative is possible - I’m confused :)).

In any case, the concept of “insignificance” rests on the concept of “public danger”.

The already cited Determination of the Constitutional Court of the Russian Federation of October 26, 2022 N 2257-O also states that the federal legislator, within the framework of its powers, determining the content of the criminal law, establishes the criminality of certain socially dangerous acts, their punishability, as well as the procedure for bringing the perpetrators to justice. criminal liability, taking into account the degree of prevalence of such acts, the significance of the legally protected values ​​that they encroach on, and the significance of the harm they cause (resolutions of the Constitutional Court of the Russian Federation dated June 27, 2005 N 7-P and February 10, 2022 N 2- P). That is why part one of Art. 73 of the Code of Criminal Procedure of the Russian Federation recognizes as a circumstance subject to proof, along with the event of the crime (clause 1), the nature and extent of the harm caused by the crime (clause 4).

As you can see, the Constitutional Court of the Russian Federation believes that when determining crime, the prevalence of acts, the significance of the protected values, and the significance of the harm caused are taken into account first of all.

Obviously, there are a huge number of actions that, due to: a) their prevalence, b) the significance of the social relations within which these actions are performed, and c) the absence of any adverse consequences, are not offenses. Let’s call this state of affairs “zero public danger.” In the sense of legal regulation, this is “desired” social behavior.

It is also obvious that a gigantic variety of actions are performed, which, due to: a) their prevalence, b) the significance of the social relations within the framework of which these actions are performed, and c) the occurrence of any adverse consequences, entail causing a certain (and sometimes very significant) ) harm (for example, material) to a person and a citizen (and sometimes not to one, but to many, many). As an example, I will cite the recent infliction of significant material damage by independent oil futures traders. Yes, there, of course, amateur investors traded at their own peril and risk. On the other hand, the person who provided the site did not provide for restrictive mechanisms in the program, and when the situation began to develop according to an unforeseen scenario, it stopped trading altogether in violation of the regulations. According to the above calculations of the Constitutional Court of the Russian Federation, this state of affairs can be called a public danger of a non-criminal nature. Within the meaning of legal regulation, this is “dangerous but unpunished behavior.”

But then comes the next level of legal regulation - “dangerous punishable behavior”, which, due to varying degrees of danger (and therefore liability), consists of two clusters: “dangerous punishable non-criminal behavior” (that is, administrative offenses), and “dangerous punishable criminal behavior" (i.e. crimes).

Please note that the description of actions is based on the degree of increasing public danger - “from bottom to top”, “from minimum to maximum”, “from zero to infinity”.

And here, on the border of “punishable non-criminal” and “punishable criminal” behavior, another global problem of the use of insignificance arises - can every act be considered insignificant?

In fact, there is a complex interaction between the concepts of “criminal act”, “administrative offense”, and “composition” of each of the two terms given; Moreover, within the framework of this interaction it is not always possible to give an unambiguous answer to the question posed.

The Deputy Prosecutor General achieved in the Supreme Court the termination of criminal prosecution due to the insignificance of the act

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation issued a cassation ruling in case No. 15-UDP20-7-K1, which overturned judicial acts of lower authorities and terminated the criminal case against a former municipal employee who was accused of fraud in the preparation of income certificates to receive social support measures in the form of free school meals for her daughter. Deputy Prosecutor General Viktor Grin filed a cassation appeal to the Supreme Court.

Only the Prosecutor General's Office indicated the possibility of dismissing the case on exonerating grounds

In September 2011 to May 2014, the deputy head of the administration of the Gorensky rural settlement of the Zubovo-Polyansky municipal district of the Republic of Mordovia, Elena Filippova, entered false information into certificates of her own and spousal income, and then submitted them to the school in order for her daughter to receive the right to free meals in the school cafeteria. In this regard, the girl was unreasonably provided with a measure of social support in the form of exemption from paying for food as a child from a low-income family. According to investigators, the woman’s actions caused material damage to the republican budget in the amount of over 10 thousand rubles.

Elena Filippova was accused of fraud in receiving payments under Part 3 of Art. 159.2 of the Criminal Code of the Russian Federation, however, in October 2022, the Zubovo-Polyansky District Court of the Republic of Mordovia dismissed the criminal case for non-rehabilitating circumstances in connection with the amnesty in honor of the 70th anniversary of Victory in the Great Patriotic War. The First Cassation Court of General Jurisdiction upheld the judicial act of the first instance.

Subsequently, Deputy Prosecutor General of the Russian Federation Viktor Grin filed a cassation appeal to the Supreme Court, demanding the termination of the criminal case against Filippova due to the lack of corpus delicti in her actions and the cancellation of previously issued judicial acts.