The effect of criminal law in time: qualification rules under Article 9 of the Criminal Code of the Russian Federation

The constant development of such a science as jurisprudence, as well as its socialization in society, determine the need for constant improvement of the guidelines of the country’s main legal documents.
The development of technology in all spheres of human activity and human relations themselves require respect for the rights, freedoms and ethics of each individual. Taking these provisions as the basis of the constitutional system, the state developed norms of behavior, as well as responsibility for deviations from them, and enshrined these provisions in the Criminal Code in the form of articles and laws. These rules are mandatory for everyone and have an established procedure for application that does not allow for ambiguity or ambiguity. One of the rules for the application of a particular normative act is the operation of the criminal law in time, which will be discussed.

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Legislation on the issue

The norm regulating the operation of the law in time is Art. 9 of the Criminal Code of the Russian Federation, which states: “The criminality and punishability of an act are determined by the criminal law in force at the time the act was committed. The time of commission of a crime is the time of commission of a socially dangerous action (inaction), regardless of the time of the onset of consequences.”

In addition, Article 10 of this code establishes the rules for the application of provisions that reduce punishment (or completely eliminate criminal punishment) for crimes committed.

In relation to criminal practice this is expressed:

the retroactive effect of laws that help mitigate the punishment for a crime;
with the exception of the retroactive effect of acts that increase liability for the crime committed;
the possibility of reviewing decisions in criminal cases in which a court decision was carried out (in the form of imprisonment) in part that improves the situation of the convicted.

These two articles of the Criminal Code of our country fully comply with the main principles of criminal law - legality and equality.

The retroactive effect (force) of a law means the possibility of applying its provisions to criminal cases, liability for crimes for which arose before it came into force.

It is worth noting that the legislative body, when exercising the right to legislate, in new laws and by-laws must take into account all aspects reflected in Articles 9 and 10 of the Criminal Code. Any disagreements or discrepancies with this Code will be interpreted in its favor. In addition, the difference in the nature of crimes in terms of their composition determines the need for state regulation and control over the application of provisions related to the operation of criminal law over time.

In simple words, the moment of onset of responsibility depends on the article under which a person is convicted. The moment of onset of responsibility (the time, date, month and year are established) for the crime committed is the moment when the negative effect reflected in the article of the criminal law is achieved.

In this regard, there is a need to clearly delineate the time frame of the law in relation to each type of crime. Only by satisfying this provision can we talk about the correct, legal application of criminal law.

The procedure for applying criminal law

The order of investigation, as well as legal proceedings, depends on at what point in time the fact of committing a crime is established, regardless of the time of its consequences. This is due to the fact that the order of the stages of investigation, inquiry, investigation and the very proof of guilt by the court occurs in compliance with the laws in force at the time the crime was committed.

The main criteria for qualifying a crime under a particular law are given below:

The official date of the commission of the unlawful act must coincide with the period of validity of the law, and in its absence, it must correspond to the date of the official entry into force of the act.
When a trial is carried out with some delay (a long period of investigation of the case or other procedures established by law), the determination of the guilt of the defendant must be carried out according to the rules in force at the time of the commission of the crime, regardless of the status of the law at the moment (as well as the existence of an act replacing the previous one).
When issuing acts mitigating the consequences of punishment, as well as in cases of abolition (replacement) of criminal punishment, this law applies to completed criminal cases in which the offender is serving a sentence or has an outstanding criminal record. In special cases, the charges against the person are completely dropped.

The provision described in paragraph 2 applies specifically to laws or parts of laws that increase the punishment for an unlawful act. The application of this provision is determined by the fairness and humanity of criminal proceedings; it does not allow the accusation of a person who, in principle, could not know the consequences of his act, since the state legislative body did not define a clear position regarding his act.

Retroactive application of the law

If a criminal procedural law is adopted that has retroactive effect on the complete decriminalization of an act, the case is closed at any stage of the proceedings, including the preliminary investigation. If this law came into force after a court decision was made, it is not canceled for lack of corpus delicti, but the convicted person is released from punishment. When mitigating liability, the court (including the cassation and supervisory authorities) takes into account the new provision when passing a sentence. The prescribed measures are reduced in accordance with the new regulations.

The lawyer will answer your questions in the comments to the article

Operating principle

The Criminal Code presupposes three basic principles of the operation of criminal law over time:

principle of immediate (direct) action (basic);
ultra-active principle (exceptional);
principle of retroactivity (exceptional).

The first point is the basic principle that determines the direct action of the law in time, that is, the action of the law “here and now.” The second and third principles, called exceptional, are designed to implement the basis of our state - the constitutional order - through justice and truthfulness.

The principle of immediate effect of the law

One of the determining aspects of the operation of a criminal law over time is the order of its adoption, as well as its entry into legal force.
Submitting a draft law for consideration by the lower houses of parliament, its promotion and entry into force is a very complex, labor-intensive and time-consuming process. This is due to several requirements:

Compliance with the principles of the constitutional system of Russia as fundamental norms and rules of coexistence of people of a civilized society.
The study of governing documents at the stage of consideration and verification of clauses of the law for compliance with the Constitution of the Russian Federation, the main acts regulating legislative activity, as well as industry norms (institutions), the provisions of which are dominant (in relation to criminal laws, the dominant normative act is the Criminal Code of Russia).
Checking the viability and acceptability of the new act, as well as its compliance with international agreements and conventions.
The procedure for the entry into legal force of a norm throughout the country.

The correct application of the last paragraph largely determines the prospects for the development and completion of certain criminal cases.

Ultraactive principle

The criminal act under which the offender is being tried can, over time, be repealed or replaced with a similar one. According to the principle of ultra-activity, a criminal case initiated at the time of action of a certain range of acts is subject to completion and qualification under the same acts, regardless of the status of their action. It turns out that a law repealed in the present tense continues to apply for a certain range of criminal cases initiated in the past.

This principle applies to articles and points that worsen the situation of the defendant or convicted person. That is, having committed a criminal act within a certain period of time, a person is subject only to the rules in force at that time.

The principle of retroactivity

The principle of retroactivity, or retroactive force of law, applies to government acts designed to:

improve the position of the defendant (convict);
remove partially or completely criminal liability for committing any act that is not recognized as a crime;
reduce the actual term of serving a sentence for convicts, as well as cancel the criminal debts of persons who have served their sentences.

Retroactivity provisions are determined by the Constitution of Russia, as well as international agreements.

In relation to the stage of the criminal case of a particular person, retrospection can be simple and revisionary. A simple sentence implies a mitigation of punishment in pending court cases (no verdict has been passed). The Audit Office sees a revision of court decisions that have entered into force on certain crimes in the direction of mitigating the current punishment.

The effect of criminal law in time: problems of theory and practice

K.V. OBRAZHIEV

Obrazhiev Konstantin Viktorovich, head of the department of the Academy of the General Prosecutor's Office of the Russian Federation, Doctor of Law, Associate Professor.

The article examines the features of the action of criminal law norms over time during the transformation of their blanket part, as well as when changing the specific (secondary) criminal law regulations formulated in the resolution of the Plenum of the Supreme Court of the Russian Federation.

Key words: effect of criminal law norms, retroactive force of the criminal law, blanket, blanket part of the criminal law norm, resolutions of the Plenum, sources of criminal law.

Operation of criminal legal provisions in time: problems of theory and practice

KV Obrazhiyev

Obrazhiyev Konstantin Viktorovich, LLD, Assoc. Prof., Head of Department, Academy of the Prosecutor General's Office of the Russian Federation.

The article describes the temporal action of criminal law in the case of the transformation of the blanket part of criminal law rule, as well as specifying the change secondary criminal law regulations set forth in the resolution of the Plenum of the Supreme Court of the Russian Federation .

Key words: action of criminal law, the retroactive action of the criminal law, blanket part of criminal law, the decision of the Plenum, the sources of criminal law.

Articles 9 and 10 of the Criminal Code of the Russian Federation provide for the rules for the temporal action of only one legal source of criminal law - the criminal law, without taking into account the fact of the existence of other sources that can, without adjusting the Criminal Code of the Russian Federation, change the content of criminal law norms, and therefore affect the position of the person who committed the crime . A change in the content of a criminal law norm, not related to the transformation of the Criminal Code of the Russian Federation, may occur in the following cases: a) when changing the blanket part of the corresponding criminal law norm; b) when changing the specific (secondary) criminal law regulations formulated in the resolution of the Plenum of the Supreme Court of the Russian Federation.

Starting to consider the peculiarities of the action in time of criminal law norms when changing their blanket part , we note that the blanket part of the norm can be expressed:

a) in the Constitution of the Russian Federation and international treaties of Russia. In particular, a blanket reference to the provisions of the Constitution is contained in Art. Art. 278, 279 of the Criminal Code of the Russian Federation, in paragraph 2 of the notes to Art. 285 of the Criminal Code of the Russian Federation, notes to Art. 322 of the Criminal Code of the Russian Federation, as a result of which constitutional provisions are “implanted” into the content of the relevant criminal law norms. A blanket reference to international treaties is mainly characteristic of criminal law norms implemented into Russian criminal legislation under the influence of international law. For example, the content of the criminal law norm on liability for the use of prohibited means and methods of warfare includes the provisions of international treaties defining the “rules” of conducting armed conflicts, to which Parts 1 and 2 of Art. 356 of the Criminal Code of the Russian Federation;

b) in regulatory legal acts of other branches of law, for example in various kinds of rules and requirements: labor protection, fire safety, performance of certain works, road traffic, etc. In such cases, the corresponding regulations of administrative, civil, tax, labor and other legislation become an integral part of the criminal law;

c) in subordinate criminal legal acts - Government resolutions adopted in accordance with the notes to the articles of the Special Part of the Criminal Code of the Russian Federation <1>. These resolutions determine the blanket content of the subjects of crimes provided for in Art. Art. 226.1, 228, 228.1, 228.3, 228.4, 229, 229.1, 231, 234, 258.1 of the Criminal Code of the Russian Federation, which means that their change leads to a transformation of the content of the criminal law norm as a whole;

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<1> See, for example: Resolution of the Government of the Russian Federation of October 1, 2012 N 1002 “On approval of significant, large and especially large sizes of narcotic drugs and psychotropic substances, as well as significant, large and especially large sizes for plants containing narcotic drugs drugs or psychotropic substances, or parts thereof containing narcotic drugs or psychotropic substances, for the purposes of Articles 228, 228.1, 229 and 229.1 of the Criminal Code of the Russian Federation"; dated December 29, 2007 N 964 “On approval of lists of potent and toxic substances for the purposes of Article 234 and other articles of the Criminal Code of the Russian Federation, as well as large quantities of potent substances for the purposes of Article 234 of the Criminal Code of the Russian Federation”; dated November 27, 2010 N 934 “On approval of the list of plants containing narcotic drugs or psychotropic substances or their precursors and subject to control in the Russian Federation, large and especially large-scale cultivation of plants containing narcotic drugs or psychotropic substances or their precursors, for the purposes Article 231 of the Criminal Code of the Russian Federation, as well as on amendments and invalidation of certain acts of the Government of the Russian Federation on the issue of trafficking in plants containing narcotic drugs or psychotropic substances or their precursors.”

d) in decisions of the Supreme Court, which determine the blanket content of the elements of certain crimes. For example, Art. 205.5 of the Criminal Code of the Russian Federation provides for liability for organizing the activities of an organization that, in accordance with the legislation of the Russian Federation (i.e., by a court decision <2>) is recognized as terrorist; Art. 282.2 of the Criminal Code of the Russian Federation establishes responsibility for organizing the activities of a public or religious association or other organization in respect of which the court has made a decision to liquidate or prohibit activities that has entered into legal force in connection with the implementation of extremist activities. Consequently, the adoption of a new decision by the Supreme Court of the Russian Federation to recognize an organization as terrorist or extremist expands the content of the corresponding criminal law prohibition.

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<2> In accordance with Part 2 of Art. 24 of Federal Law No. 35-FZ of March 6, 2006 “On Countering Terrorism,” an organization is recognized as terrorist and is subject to liquidation (its activities are prohibited) by a court decision based on an application from the Prosecutor General of the Russian Federation or a subordinate prosecutor.

The rules for the temporal effect of criminal law norms when their blanket part is changed are reflected in the Determination of the Constitutional Court of the Russian Federation of July 10, 2003 N 270-O <3>. As stated in this Definition, “the decriminalization of certain acts can be carried out not only by introducing appropriate changes to the criminal legislation, but also by repealing normative regulations of another sector, to which the blanket norms of the criminal law referred...” At the same time, the Constitutional Court emphasized that Art. 10 of the Criminal Code of the Russian Federation and clause 13 of Art. 397 of the Code of Criminal Procedure of the Russian Federation “does not exclude the possibility of giving retroactive force to laws of other sectoral affiliations to the extent that these laws limit the scope of criminal legal regulation.”

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<3> Determination of the Constitutional Court of the Russian Federation dated July 10, 2003 N 270-O “On the refusal to accept for consideration the request of the Kurgan City Court of the Kurgan Region to verify the constitutionality of part one of Article 3, Article 10 of the Criminal Code of the Russian Federation and paragraph 13 of Article 397 Criminal -Procedural Code of the Russian Federation” // Bulletin of the Constitutional Court of the Russian Federation. 2003. N 5.

The cited legal position of the Constitutional Court <4> allows, when qualifying a crime, to give retroactive force to a criminal law norm that has undergone changes due to the transformation of the blanket part (of course, provided that the corresponding changes improve the position of the person who committed the crime).

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<4> Legal positions of the Constitutional Court of the Russian Federation are the results of interpretation, identification of the “constitutional meaning” of the contested normative legal act (its individual provisions), which remove constitutional uncertainty and serve as the legal basis for the final decisions of the Constitutional Court of the Russian Federation (see: Vitruk N.V. Constitutional justice in Russia (1991 - 2001): Essays on theory and practice. M., 2001, p. 111). Without delving into the consideration of the legal nature of the legal positions of the Constitutional Court, we note that in accordance with Part 1 of Art. 47.1 and part 5 of Art. 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ “On the Constitutional Court of the Russian Federation” they (legal positions) are expressed in decisions of the Constitutional Court. However, as the practice of constitutional normative control shows, those conclusions about the “constitutional meaning” of a normative legal act or its individual provisions that are contained in the rulings of the Constitutional Court also have the status of legally binding legal positions. At least, the Constitutional Court regularly refers to its legal positions formulated in its previously issued rulings (see, for example: Resolutions of March 31, 2011 N 3-P, of December 6, 2011 N 27-P; Definitions dated March 1, 2012 N 274-О-О, dated March 5, 2013 N 323-О).

A similar legal position is reflected in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 No. 23 “On judicial practice in cases of illegal entrepreneurship.” Paragraph 17 of the Resolution explains that “if federal legislation excludes the corresponding type of activity from the list of types of activities, the implementation of which is permitted only on the basis of a special permit (license), the actions of a person who was engaged in this type of business activity do not contain the corpus delicti provided for Article 171 of the Criminal Code of the Russian Federation."

This approach is also used in the practice of the Supreme Court of the Russian Federation in specific criminal cases.

Krasnodar Regional Court Smirnov A.A. was found guilty of attempted theft of S.'s property, as well as the murder of S. in order to hide another crime, namely this attempted theft. The crimes were committed on June 9, 2007. Considering the case based on the cassation presentation of the prosecutor and the cassation appeal of the convicted person, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation came to the conclusion that it was necessary to amend the verdict. The highest court noted that Federal Law No. 74-FZ of May 16, 2008 “On Amendments to Art. Art. 3.5 and 7.27 of the Code of the Russian Federation on Administrative Offenses” in the note to Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, changes were made according to which the amount of petty theft was set at one thousand rubles. Since the value of the property belonging to S., the theft of which was attempted by Smirnov A.A., did not exceed this amount, the verdict against Smirnov A.A. regarding his conviction for attempted theft under Part 3 of Art. 30, part 1 art. 158 of the Criminal Code of the Russian Federation was subject to repeal, and the criminal case in this part was to be terminated due to the absence of corpus delicti in the act on the basis of clause 2 of part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation. In addition, since, taking into account the changes made to the law, Smirnov’s actions aimed at taking possession of someone else’s property contained signs of an administrative offense, then his actions in terms of intentionally causing the death of the victim S. can no longer be qualified as murder in order to hide another crime and were re-qualified from paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on Part 1 of Art. 105 of the Criminal Code of the Russian Federation, which provides for criminal liability for intentionally causing the death of another person <5>.

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<5> Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated April 17, 2012 N 18-012-8 in the case of Smirnov A.A. // SPS “ConsultantPlus”.

In a similar way, the question of the temporal effect of a criminal law norm is resolved, the content of which was transformed as a result of amendments to the Resolution of the Government of the Russian Federation, adopted in accordance with the note to the article of the Special Part of the Criminal Code of the Russian Federation. If this norm improves the situation of the person who committed the crime, then it has retroactive force.

Thus, according to the verdict of April 6, 2011, D. was convicted under Part 3 of Art. 30, paragraph “b”, part 2, art. 228.1 of the Criminal Code of the Russian Federation. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation changed the verdict because the lower court did not take into account that, in accordance with the changes introduced into the legislation by Decree of the Government of the Russian Federation of October 1, 2012 N 1002, the size of narcotic drugs is determined by the mass of their dry residue after drying.

From the case materials, it appears that D. was convicted of a crime committed on November 24, 2010 - attempted illegal sale of a narcotic drug - a solution of desomorphine weighing 2.02 g, the dry residue of which was not determined during the criminal proceedings and the amount of this amount was not determined of a narcotic drug, including classifying it as a major drug, is currently not possible. In this regard, the conclusion of the supervisory court regarding the qualification of D.’s actions under Part 3 of Art. 30, paragraph “b”, part 2, art. 228.1 of the Criminal Code of the Russian Federation as an attempt on the illegal sale of narcotic drugs on a large scale, taking into account the changes made to the legislation, cannot be considered justified.

Under such circumstances, the Judicial Collegium of the Supreme Court of the Russian Federation reclassified D.’s actions from Part 3 of Art. 30, paragraph “b”, part 2, art. 228.1 of the Criminal Code of the Russian Federation on Part 3 of Art. 30, part 1 art. 228.1 of the Criminal Code of the Russian Federation <6>.

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<6> Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 15, 2014 N 71-D13-13 (Review of the practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for the first half of 2014 // Bulletin of the Supreme Court of the Russian Federation. 2014. N 10).

It should be emphasized that the rule on the retroactive effect of the blanket part of criminal law norms does not apply to technical and legal regulations. As rightly noted in the criminal law literature, safety rules, like other technical and legal norms, cannot have retroactive effect. “Otherwise, a person who violated, for example, the order of passage through an intersection, which resulted in the infliction of serious harm to the health of another person, can avoid criminal liability only because the rules have been changed, and according to the new rules, the person causing the harm would have an advantage” <7>.

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<7> See: Pikurov N.I. Qualification of crimes with blanket characteristics: Monograph. M.: Russian Academy of Justice, 2009. P. 164.

In addition, the rule in question does not apply in cases where non-criminal legislation, due to its blanket nature, is associated with the Criminal Code of the Russian Federation, does not allow the retroactive effect of its regulations <8>. For example, in accordance with paragraph 4 of Art. 5 of the Tax Code of the Russian Federation, acts of legislation on taxes and fees that cancel taxes and (or) fees, reduce tax rates (fees), eliminate the obligations of taxpayers, payers of fees, tax agents, their representatives or otherwise improve their position, may have retroactive effect , only if they expressly provide for it. Based on this, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 N 64 “On the practice of application by courts of criminal legislation on liability for tax crimes” <9> explains that “when calculating the amount of tax and (or) fee, formed as a result of evasion of their payment, the courts must take into account only those taxes, fees, tax rates and their amounts that were established by law for a specific tax period. In cases where an act of legislation has abolished taxes or fees or reduced the rates of taxes (fees), the calculation must be made taking into account this new circumstance, if the relevant act is given retroactive force (clause 4 of Article 5 of the Tax Code of the Russian Federation).”

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<8> See: N. Pikurov. Establishing the limits of the criminal law in time, taking into account intersectoral connections // Criminal law. 2012. N 5. P. 105 - 106.

<9> Russian newspaper. 2006. December 31.

Moving on to the consideration of the features of the temporal effect of criminal law norms when changing decisions of the Plenum of the Supreme Court of the Russian Federation, it should be noted that these legal acts contain criminal law regulations that specify the criminal law (i.e., having a subordinate nature) <10>. Moreover, a change in the resolution of the Plenum can most directly affect the content of the criminal law norm, and therefore the position of the person to whom this norm is charged.

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<10> For more information about the legal nature and criminal legal significance of the resolutions of the Plenum, see: Obrazhiev K. Resolutions of the Plenum of the Supreme Court of the Russian Federation as formal (legal) sources of Russian criminal law // Criminal Law. 2008. N 4.

Thus, in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 14, 2000 No. 7 “On judicial practice in cases of juvenile crimes” <11> (now no longer in force) it was explained that “crimes for which liability is provided for in the articles 150 and 151 of the Criminal Code of the Russian Federation are completed from the moment a minor is involved in committing a crime or antisocial actions, regardless of whether he committed any of these illegal actions.” However, in its replacement, Resolution No. 1 of February 1, 2011, “On the judicial practice of applying legislation regulating the specifics of criminal liability and punishment of minors” <12> The Plenum of the Supreme Court changed its position regarding the moment of the legal end of these crimes, indicating that “crimes responsibility for which is provided for in Articles 150 and 151 of the Criminal Code of the Russian Federation is completed from the moment a minor commits a crime, preparation for a crime, attempted crime, or after committing at least one of the antisocial actions provided for by the disposition of part 1 of Article 151 of the Criminal Code of the Russian Federation (systematic consumption of alcoholic beverages, intoxicants, vagrancy or begging). If the consequences provided for by the dispositions of these norms did not occur due to circumstances beyond the control of the perpetrators, then their actions can be qualified under Part 3 of Article 30 of the Criminal Code of the Russian Federation and under Article 150 of the Criminal Code of the Russian Federation or Article 151 of the Criminal Code of the Russian Federation.” It is easy to notice that Resolution of the Plenum of February 1, 2011 No. 1 improved the situation of persons who have committed unsuccessful involvement of a minor in the commission of a crime or antisocial actions.

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<11> Russian newspaper. 2000. March 14.

<12> Russian newspaper. 2011. February 11.

Correcting the resolution of the Plenum of the Supreme Court of the Russian Federation can also lead to changes of the opposite order - to a worsening of the situation of the person who committed the crime. A similar situation arose in connection with the adoption of Resolution of the Plenum of June 30, 2015 No. 30 “On amendments to the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2006 No. 14 “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances." In particular, this Resolution formulates a new, broader definition of the illegal sale of narcotic drugs, psychotropic substances or their analogues, plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances. The new definition makes it possible to qualify as completed illegal sale of psychoactive substances actions that were previously (based on the previous edition of Resolution of the Plenum of June 15, 2006 No. 14) recognized as an attempt to sell the relevant items.

Unfortunately, the current legislation does not officially recognize the decisions of the Plenum of the Supreme Court of the Russian Federation as legal sources of law, and therefore the question of their temporal effect remains open. To resolve this issue, it is necessary, first of all, to determine the legal nature of the decisions of the Plenum. If they are of a normative nature, then in theory it is necessary to apply to them the general principles of the operation of the law in time (Article 54 of the Constitution of the Russian Federation). If the resolutions of the Plenum are of a non-normative nature, then there are no grounds for this.

We believe that at present, for the recognition of decisions of the Plenum of the Supreme Court of the Russian Federation as legal sources of law, there are all the necessary prerequisites (both legal and factual). Moreover, this conclusion cannot be considered only the result of scientific theorizing; it inevitably follows from the legal positions of the Constitutional Court of the Russian Federation regarding the criteria for the normativity of legal acts expressed in Resolution No. 6-P <13> of March 31, 2015. Having considered the issue of the legal nature of the letters of the Federal Tax Service, the Constitutional Court of the Russian Federation o. At the same time, the Constitutional Court of the Russian Federation emphasized that the basis for resolving the issue of the possibility of recognizing letters of the Federal Tax Service as normative legal acts “should be based on the presence of normative properties in this act (does it have a general regulatory impact on public relations, does it contain instructions on rights and obligations a personally unspecified circle of persons - participants in the relevant legal relations, whether it is designed for repeated use).”

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<13> Resolution of the Constitutional Court of the Russian Federation dated March 31, 2015 N 6-P “In the case of verifying the constitutionality of paragraph 1 of part 4 of article 2 of the Federal Constitutional Law “On the Supreme Court of the Russian Federation” and paragraph of the third subparagraph 1 of paragraph 1 of article 342 of the Tax Code of the Russian Federation in connection with the complaint of the open joint-stock company Gazprom Neft // Rossiyskaya Gazeta. 2015. April 13.

Applying these criteria to the decisions of the Plenum of the Supreme Court of the Russian Federation, we can clearly conclude that the decisions of the Plenum have all normative properties. Consequently, they are fully subject to the provisions of Art. 54 of the Constitution of the Russian Federation, according to which the law establishing or aggravating liability does not have retroactive force (Part 1); 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 (Part 2) <14>.

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<14> It seems that the cited constitutional provisions on the retroactive force of the new law should be applied not only to laws in the narrow sense, but also more broadly - to all regulatory requirements, including decisions of the Plenum of the Supreme Court of the Russian Federation. The basis for this approach can be the well-known legal position of the European Court of Human Rights, according to which in the criminal legal field the term “law” should cover both statutory, case law, written and unwritten law; in a word, all sources of law permissible in the legal system, from which and on the basis of which any person (independently or with the help of the services of professional lawyers) can draw a conclusion about the limits of acceptable behavior and the content of elements of crimes (see, for example: Resolution of March 29, 2006 in the case of Ashour v. France (complaint No. 67335/01); Resolution of July 25, 2013 in the case of Khodorkovsky and Lebedev v. the Russian Federation (complaints No. 11082/06 and 13772/05 ); Resolution of November 9, 2008 in the case “Moiseev v. Russian Federation” (complaint No. 62936/00), etc. // ATP “ConsultantPlus”).

Taking into account these constitutional requirements, the following qualification rules can be formulated.

Lawyers' comments

A large amount of time is spent on coordinating the readings of by-laws, the Constitution, and the codes of our country. The norms, principles and provisions of all listed documents must correspond, be consistent, clarify and complement each other. In fact, discrepancies and contradictions in laws are a frequent occurrence.

Thus, Article 9 of the code determines the time of commission of a crime as the time of commission of an unlawful act, without taking into account whether the “ultimate goal” of a certain criminal act was achieved. But with Article 29 of this code, which provides for the procedure for qualifying a completed and unfinished crime, a discrepancy is created in paragraph 1.

“Article 29. Completed and unfinished crimes:

A crime is considered completed if the act committed by a person contains all the elements of a crime provided for by this Code.
Preparation for a crime and attempted crime are recognized as unfinished crimes.
Criminal liability for an unfinished crime occurs under the article of this Code that provides for liability for a completed crime, with reference to Article 30 of this Code.”

Analyzing the above articles, experts in the field of jurisprudence came to the following conclusion: the operation of criminal laws over time, the qualification rules of which are consistent with the types of crimes, is the only and correct way out of the discrepancies in the interpretation of these articles. This point has not been ignored by specialized literature devoted to the study of the rules of law of our country.

The corpus delicti is the sum of the characteristic features of an act, enshrined in the Criminal Code and constituting an unlawful act.

At the moment, there are three types of crime. This:

material composition;
formal composition;
truncated composition.

Material composition is qualified as a crime that has consequences, for example, murder or harm to a person’s health. In this case, the time of the end of the crime according to the material components is recognized as the time of the onset of the consequences. For example, in the protocol of a criminal case (trial) the date of death of the victim is recorded, whereby the crime is completed.

In connection with this, the time of commission of a crime is considered to be: in the example, the death of a person; in the general case – the onset of consequences.

The formal corpus delicti is achieved by committing an act, but without the occurrence of consequences. Organization of a criminal group or, for example, slander falls under this qualification. In this case, the time of commission of the crime is the act.

The truncated composition in time is determined by the achievement of the end of the crime at the initial stage, that is, during preparation.

Classification of violations of the law

Considering the time of crimes committed, one cannot help but study the issue of classifying crimes into categories such as single and multiple.

A criminal act is considered to be a single one if it contains the elements of a single violation and is classified under one article of the Criminal Code.

A crime is multiple if the violation consists of two or more dissimilar and identical operations.

Complex crimes

If there are many criminal acts, but the classification is based on one article, the violation will be single, but complex. This type of violation of the law comes in several categories:

Continued.
Lasting.
Composite.
With two or more alternative actions.
Two-object and multi-object.
With different consequences.
With two categories of guilt.
With repeated manipulations.

All types of crimes listed above are limited in time. We are talking about the initial and final moments of its implementation. The end period usually coincides with the receipt of a planned or unexpected result.

The exception will be criminal actions carried out continuously over a more or less long period of time. An example is escape from a place of detention (Article 313 of the Criminal Code).

Simple violations

A single and simple criminal act in structure may be present with the following characteristics:

One action or demonstrated inaction caused one consequence prescribed in the Criminal Code. For example, theft of property or personal property is one action, damage to the owner is one consequence.
A criminal violation consists of one manipulation, and the consequences relate to a different composition. This includes the threat of harm to a person.
One act of breaking the law led to several consequences.
The legislation provides for several alternative acts, but only one of them turned out to be sufficient to impose a sentence.

All simple and complex crimes are divided into continuing and continuing.

Continuing criminal acts

There are several characteristics of violations in this category:

A violation will be recognized as continuing if it is characterized by continuous occurrence over a certain period.
Plurality is completely excluded here!
A continuing violation will be completed from the date or hour of complete completion of the operation or from the moment of the occurrence of events that prevented the plan.

It is worth highlighting several examples of ongoing crimes:

Illegal detention of a person in prison or in a colony.
Evasion of financial assistance to children, parents or spouse.

In such situations, a special state is created that lasts for a certain period. The offender carries out some action or commits complete inaction, which automatically triggers the onset of a crime. After this operation, the crime commits itself and is carried out for some time.

A continuing violation enters the completed stage at the moment when, due to various circumstances beyond the control of the instigator, it ends. It is from this period of time that the calculation of the official statute of limitations for possible exemption from criminal liability begins.

Such a violation is classified under one article. The duration of the crime does not affect its legal classification, but is taken into account by the court in the sentencing process.

Continued violation

A crime will be continued if two or more similar acts were performed with equal purpose and intent. Such an action is considered completed from the moment when the last act was committed.

Continuing categories of violations are characterized by the following individual characteristics:

Two or more independent, completely separate, but identical criminal acts.
Within one ongoing violation, the intention of the offender links the individual act so that all manipulations become parts of a single operation.

In practice, the official concept of a crime that continues over time is used quite often. Some of the most common examples of such violations include:

All types of theft - Art. 186.
Causing material harm through pre-planned deception or malicious abuse of trust – Art. 196.
Crimes directly or indirectly related to gender or sexuality - Art. 171.

The beginning of a continued violation is the commission of the initial identical action. The end of such a violation is the time of the last of the planned stages of the violation. In other words, this is the achievement of the goal that the culprit has set for himself.

During the investigation process, it is very important to separate ongoing crimes from those that are ongoing. This will have a direct impact on the level of punishment imposed.

Arbitrage practice

Further in the article, case No. 4/1-80/2018 dated May 23, 2018, the city of Omutninsk, Kirov region, is considered. Citizen Lazarev, convicted of robbery with home invasion (part 3 of article 162), as well as previously convicted of fraud in entrepreneurial activity under the relevant article of the Criminal Code, filed a petition for mitigation of criminal punishment. Robbery is a particularly serious crime. Taken together with the fact that at the time of the robbery Lazarev had not expunged two past convictions characterized by serious crimes, these acts represent a particularly dangerous recidivism of crimes, which was reflected in the court verdict. Lazarev was sentenced to a fine, imprisonment in a special regime institution for a period of 12 years, and restriction of freedom for two years.

After changes in the legislation mitigating punishments (retrospection), in part 1 of Lazarev’s criminal record there were changes in the qualification from grave consequences to consequences of moderate severity, which undoubtedly affected the totality of crimes (replacing a particularly dangerous recidivism with a simple one). The court's decision was the transfer of the convicted Lazarev to a place of serving a strict regime sentence, as well as a slight reduction in terms and fines.

This case fully reflects the essence of Articles 9 and 10 of the Criminal Code.