The effect of criminal law over time. The law establishing or aggravating liability does not have retroactive effect. No one can be held responsible for an act that was not recognized as an offense at the time it was committed. If, after the commission of an offense, liability for it is eliminated or mitigated, a new law is applied ( Article 54 of the Constitution of the Russian Federation ).
The criminality and punishability of an act are determined by the criminal law in force at the time the act was committed (Part 1 of Article 9 of the Criminal Code of the Russian Federation). The time of commission of a crime is recognized as the time of commission of a socially dangerous action (inaction) regardless of the time of the onset of consequences (Part 2 of Article 9 of the Criminal Code of the Russian Federation).
In a crime with two mandatory acts, the time of commission of the crime should be determined by the moment of commission of the last of such acts. Features of advancing the time of committing certain types of crimes:
- continuing crime - at the moment of either the cessation of the commission of the crime by the person himself, or its suppression by law enforcement agencies, or the expiration of the legal obligation of the person to act, the failure of which constitutes this continuing crime;
- continuing crime - at the moment of commission of the last of a series of identical criminal actions aimed at a common goal and constituting a single crime; a crime committed in complicity - for any of the accomplices should be determined by the moment of the actual commission of the crime by the perpetrator, i.e. according to the general rules for establishing the time of commission of a crime;
- an unfinished crime - during preparation - at the moment of committing the last of the preparatory actions, during an attempt - at the moment of committing the last of the actions directly aimed at committing the crime. The date of adoption of a federal law is the day of its adoption by the State Duma in its final version. Laws are subject to official publication, and unpublished laws are not applied ( Part 3 of Article 15 of the Constitution of the Russian Federation ).
Federal laws are subject to official publication within seven days after the day they are signed by the President of the Russian Federation. The official publication of a federal law is the day of the first publication of its full text in the “Parliamentary Gazette”, “Rossiyskaya Gazeta” or the Collection of Legislation of the Russian Federation.
The federal law comes into force simultaneously throughout the entire territory of Russia 10 days after the day of its official publication, that is, from 0 o’clock on the eleventh day (the day of publication is not taken into account), unless otherwise provided in the federal law itself.
Retroactivity of criminal law
The retroactive force of a criminal law is the extension of its effect to persons who committed the relevant acts before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record. A criminal law that has retroactive effect is the law (Part 1 of Article 10 of the Criminal Code of the Russian Federation):
- eliminating the criminality of an act - a federal normative act by which one or another previously prohibited by law as a criminal act is excluded from the range of crimes;
- mitigating punishment;
- the highest or lowest amount of this type of criminal punishment is reduced;
- a more lenient type of punishment is introduced into the sanction of the article as an alternative punishment, or a more lenient type of punishment is established for this act compared to the previous sanction;
- additional punishment is excluded from the sanction of the article or the possibility of optional application of additional punishment is introduced, whereas before the adoption of the new law, the imposition of this additional punishment was mandatory;
- a federal normative act that otherwise improves the situation of a person who has committed a crime, which contains legal regulations that alleviate the fate of the person who committed a crime.
The criminal law does not have retroactive effect (Part 1 of Article 10 of the Criminal Code of the Russian Federation):
- a law that recognizes an act as criminal and punishable, which previously did not establish the criminality of the act considered a crime;
- increasing punishment - a law in which the minimum or maximum sanction of the corresponding article of the Criminal Code of the Russian Federation is increased or an additional punishment is introduced into the sanction of the article as mandatory or optional, etc.;
- otherwise worsening the situation - a law that makes rules; unfavorable in one way or another for the person who committed the crime.
If a new criminal law mitigates the punishment for an act that is being served by a person, then this punishment is subject to reduction within the limits provided for by the new criminal law (Part 2 of Article 10 of the Criminal Code of the Russian Federation).
Article 4 of the Code of Criminal Procedure of the Russian Federation. Effect of the criminal procedure law in time (current version)
1. The rules for the operation of the criminal procedural law in time cover two different groups of issues: a) about the time of entry into force of the law and its termination; b) on the application of the norms of criminal procedure law in the event of changes in legislation in cases that arose before the adoption of the new law.
2. Like other laws, the criminal procedure law comes into force ten days after its official publication, unless the law itself establishes a different procedure for its entry into force (Federal Law of June 14, 1994 N 5-FZ “On the Procedure publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly" with amendments and additions introduced by the Federal Law of October 22, 1999 N 185-FZ). The official publication of the Federal Law is the first publication of its full text in the “Parliamentary Gazette”, “Rossiyskaya Gazeta” or the Collection of Legislation of the Russian Federation. Termination of a law is determined either by the repeal of this law, or the adoption of a new law repealing the old one, or the expiration of its validity period, if it is somehow specified in the law, or its recognition as unconstitutional by a decision of the Constitutional Court of the Russian Federation.
3. The commented article establishes that “in criminal proceedings, the criminal procedural law in force at the time of the relevant procedural action or the adoption of a procedural decision is applied, unless otherwise established by this Code.” This provision has practical meaning only when the criminal procedural law is changed at the time of conducting proceedings in a case, when the question arises of whether to continue to apply the old law in this already begun case or whether it is necessary to apply a new one - otherwise regulating the same procedural relations. The general rule is this: the previous procedural law ceases to be applied in the proceedings after the entry into force of the new one.
The following example from judicial practice is indicative in this regard. On June 28, 2002, the judge refused to allow the accused to have their case examined by a jury, since this right under the Criminal Procedure Code arises only on July 1, 2002, and assigned the case to trial with the participation of lay judges on July 10, 2002. The Presidium of the RF Supreme Court recognizes the judge’s actions as erroneous, since from July 1 the judge had to be guided by the new Code of Criminal Procedure and satisfy the petition of the accused. In another decision, the Presidium of the Armed Forces of the Russian Federation recognizes as admissible the protocol of the inspection of the scene of the incident, in which minor witnesses participated, since at the time of the inspection Art. 135 of the Code of Criminal Procedure of the RSFSR of 1960, which did not contain a ban on the participation of such persons as witnesses.
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See: Resolution of the Presidium of the RF Armed Forces of June 4, 2003 // BVS RF. 2003. N 12.
See: Resolution of the Presidium of the RF Armed Forces of January 21, 2004 // BVS RF. 2004. N 8.
4. The new criminal procedural law, unlike the substantive criminal law, does not have retroactive effect even if it establishes rules that are more favorable for certain participants in legal proceedings. In other words, procedural actions and acts already completed in the case are not altered to fit the new law, i.e. reversing the process is not possible. This is mainly due to the fact that if the process were reversed, it would be practically impossible to re-collect many of the evidence and carry out some important procedural actions. However, in a new law or a law putting it into effect, individual exceptions to this rule may be established (or the meaning follows from it). So, according to Art. 10 of the Law “On the entry into force of the Criminal Procedure Code of the Russian Federation” (as amended by paragraph 5 of Article 1 of the Federal Law “On amendments and additions to the Federal Law of May 29, 2002 “On the entry into force of the Criminal Procedure Code of the Russian Federation” ") Since July 1, 2002, norms have been put into effect providing for the judicial procedure for the application of detention, extension of the period of detention, placement of a suspect, accused, not in custody, in a medical or psychiatric hospital for the production of forensic medical or judicial proceedings, respectively. -psychiatric examination. However, those of these decisions that were made with the sanction of the prosecutor before July 1, 2002, continued to be valid within the procedural period for which they were elected.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
The action of criminal law in space
A person who has committed a crime on the territory of the Russian Federation is subject to criminal liability under the Criminal Code of the Russian Federation (Part 1 of Article 11 of the Criminal Code of the Russian Federation). A crime is considered committed on the territory of the Russian Federation if the criminal act:
- conceived, prepared and executed on the territory of the Russian Federation;
- conceived and prepared outside of Russia, but executed on the territory of the Russian Federation;
- conceived and started on the territory of the Russian Federation, and completed outside Russia.
For the purpose of determining the place where a crime was committed, the territory of the Russian Federation means:
- territorial waters of the Russian Federation - territorial sea of the Russian Federation - a sea belt 12 nautical miles wide adjacent to land territory or to the internal seabed;
- the waters of the ports of the Russian Federation, limited by a line passing through the points of hydraulic engineering and other permanent structures of the ports that are most remote towards the sea;
- waters of bays, bays, lips and estuaries, the shores of which completely belong to the Russian Federation, to a straight line drawn from coast to coast at the place of the highest low tide, where one or more passages are first formed from the sea, if the width of each of them does not exceed 24 nautical miles ;
- waters of bays, bays, lips and estuaries, seas and straits with an entrance width of more than 24 nautical miles, historically belonging to Russia, the list of which is established by the Government of the Russian Federation (Article 1 of the Federal Law of July 31, 1998 No. 155-FZ “On internal sea waters, territorial sea and adjacent zone of the Russian Federation");
- airspace of the Russian Federation - the space (air column) above its land and water territories;
- continental shelf of the Russian Federation - includes the seabed and subsoil of underwater areas located outside the territorial sea of the Russian Federation throughout the natural continuation of its land territory to the outer boundary of the underwater edge of the continent. The inner limit of the continental shelf is the outer limit of the territorial sea. The outer limit of the continental shelf is located at a distance of 200 nautical miles from the baselines from which the width of the territorial sea is measured, provided that the outer limit of the underwater edge of the continent does not extend to a distance of more than 200 nautical miles (Article 1 of the Federal Law of November 30, 1995 No. 187-FZ “On the continental shelf of the Russian Federation”);
- The exclusive economic zone of the Russian Federation is a maritime area located outside the territorial sea of the Russian Federation and adjacent to it, with a special legal regime. The internal limit of the exclusive economic zone is the external limit of the territorial sea. The external border of the exclusive economic zone is located at a distance of 200 nautical miles from the baselines from which the width of the territorial sea is measured, unless otherwise provided by international treaties of the Russian Federation (Article 1 of the Federal Law of December 17, 1998 No. 187-FZ “On the Exclusive Economic Zone RF").
- a ship registered to a port of the Russian Federation, located in open water or airspace outside the Russian Federation (unless otherwise provided by an international treaty of the Russian Federation);
- a military ship or military aircraft of the Russian Federation, regardless of their location.
The issue of criminal liability of diplomatic representatives of foreign states and other citizens who enjoy immunity if these persons commit a crime on the territory of the Russian Federation is resolved in accordance with the norms of international law (Part 4 of Article 11 of the Criminal Code of the Russian Federation).
Citizens of the Russian Federation and stateless persons permanently residing in the Russian Federation who have committed a crime outside the Russian Federation are subject to criminal liability under the Criminal Code of the Russian Federation if the act they committed is recognized as a crime in the state in whose territory it was committed, and if these persons were not convicted in a foreign state . When convicted of these persons, the punishment cannot exceed the upper limit of the sanction provided for by the law of the foreign state on whose territory the crime was committed (Part 1 of Article 12 of the Criminal Code of the Russian Federation).
Military personnel of military units of the Russian Federation stationed outside the Russian Federation, for crimes committed on the territory of a foreign state, bear criminal liability under the Criminal Code of the Russian Federation, unless otherwise provided by an international treaty of the Russian Federation (Part 2 of Article 12 of the Criminal Code of the Russian Federation).
Foreign citizens and stateless persons who do not permanently reside in the Russian Federation, who have committed a crime outside the Russian Federation, are subject to criminal liability under the Criminal Code of the Russian Federation in cases where the crime is directed against the interests of the Russian Federation, and in cases provided for by an international treaty of the Russian Federation, if they have not been convicted in foreign state and are brought to criminal liability on the territory of the Russian Federation (Part 3 of Article 12 of the Criminal Code of the Russian Federation).
Criminal procedural law. Crib
6. The effect of criminal procedure law in time, space and by persons
The effect of criminal procedure law in time.
Proceedings in a criminal case are carried out on the basis of the Code of Criminal Procedure of the Russian Federation, which was in force during the production of the relevant procedural action or adoption of a procedural decision, unless another provision is established by the Code of Criminal Procedure of the Russian Federation.
The criminal procedure law does not have retroactive effect.
Federal laws come into force simultaneously throughout the entire territory of the Russian Federation 10 days after their official publication, unless a different period is established by the federal law itself. When adopting important laws, the legislator gives sufficient time to study them (codes come into force six months from the date of their official publication).
A federal law is considered officially published after the publication of its full text in the Rossiyskaya Gazeta or the Collection of Legislation of the Russian Federation.
The action of criminal procedure law in space.
Proceedings in a criminal case on the territory of the Russian Federation are carried out on the basis of the Code of Criminal Procedure of the Russian Federation, unless other rules are provided for by international treaties of the Russian Federation. The norms of the Code of Criminal Procedure of the Russian Federation are also applied in criminal proceedings regarding a crime committed on an air, sea or river vessel located outside the territory of the Russian Federation under the flag of the Russian Federation, if the said vessel is registered at a port of the Russian Federation.
The state territory of the Russian Federation is recognized
the territory of land located within the State border of the Russian Federation and the airspace located above this land, internal waters and subsoil. In addition, the territory of the Russian Federation includes territorial waters, the continental shelf and the exclusive economic zone of the Russian Federation.
Also, the territory of the Russian Federation includes ships assigned to a port of the Russian Federation and located in open water or air space outside the Russian Federation, and military ships or aircraft of the Russian Federation, regardless of location.
The effect of the criminal procedure law in relation to foreign citizens and stateless persons.
Criminal proceedings against these persons are carried out on the basis of the Code of Criminal Procedure of the Russian Federation.
When carrying out criminal proceedings on crimes committed by diplomatic representatives of foreign states and other citizens who enjoy diplomatic immunity on the territory of the Russian Federation, the norms of international law are applied.
Diplomatic immunity applies to representatives of foreign states, members of parliamentary and government delegations and other persons specified by international treaties.
Employees of consular posts have immunity from the jurisdiction of the Russian Federation in terms of their official activities. Diplomatic couriers enjoy personal immunity.
