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 law will change, the ban will remain

Nothing lasts forever. At least, the existence of laws in our country speaks volumes about this. Sometimes for obvious reasons, sometimes for unknown reasons, laws are changed or completely repealed with amazing speed. Laws, including those that are changed or even repealed, are the legal material on the basis of which judicial decisions are made.

A judicial decision is the embodiment of the law in resolving a particular situation, its materialization in resolving a particular dispute. A court decision can be made, come into force and be executed, but then, after changing or repealing the law that served as the basis for this decision, this decision is not subject to any revision, even if, according to the new rules, it is in all respects unlawful.

The execution of the decision is already a matter of history. What is done cannot be returned. I'm talking here only about legal and informed decisions.

But there are cases when, in the process of executing court decisions, the law (namely the rules of substantive law) on which this decision was based changed or was canceled.

In the area of private law, this has no effect. For example, a decision to collect before 08/01/2016 (the day of entry into force of the Federal Law of 07/03/2016 No. 315-FZ) legal interest (Article 317.1 of the Civil Code of the Russian Federation) will not be canceled, even if after the entry into force of this law This interest would not have been recovered from the defendant. I mean that from 06/01/2015 to 07/31/2016, the courts could collect legal interest if there were no provisions in the contracts that such interest would not be accrued. Let me remind you that from 08/01/2016 you can collect if the contract directly states this. In other words, such a decision is enforceable unless there are other reasons for non-execution.

Of course, there are some exceptions, but in public branches of law.

Yes, Art. 10 of the Criminal Code of the Russian Federation establishes that a criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who committed a crime, has retroactive effect, that is, it applies to persons who committed the relevant acts before the entry into force of such a law, including persons who are serving a sentence or have served a sentence but have a criminal record. That is, in cases of decriminalization, a person convicted of committing a crime that was excluded from the scope of criminal law is exempt from criminal liability.

Art. 31.7. The Code of Administrative Offenses of the Russian Federation establishes that a judge, body, or official who made a decision to impose an administrative penalty shall terminate the execution of the decision if the law or its provisions establishing administrative liability for the offense are declared invalid.

Thus, in the branches of public law there is a rule that a measure of influence is not applied to a person who has committed an offense if the norm of substantive law that served as the basis for this measure of influence has become invalid.

However, even in the sphere of legal relations that are not related to the areas of regulation (impact) of criminal law and legislation on administrative offenses, court decisions are made in which there is no application of legal liability measures, but which indicate certain obligations of the defendant, restrictions and prohibitions. We are talking about decisions on coercion of a non-property nature. Moreover, some of these decisions do not imply one-time, not one-time execution, as, for example, in the demolition of an unauthorized building (I understand that in most cases one-time execution will not be one-time), but a continuing (continued) action or inaction of the debtor. In other words, we are talking about decisions whose validity is actually unlimited. Of course, most of such court decisions are made in accordance with Art. 46 of the Code of Civil Procedure of the Russian Federation for claims in defense of the rights of an indefinite circle of persons, including an indefinite circle of consumers (Article 46 of the Law of the Russian Federation “On the Protection of Consumer Rights”).

The current legislation does not establish any obstacles to submit for execution to the bailiff service a writ of execution issued on the basis of a judicial act, which will establish requirements that differ from the requirements contained in the law in force at the time of the proposed execution. And, of course, we cannot exclude a situation in which the bailiff receives a writ of execution for execution on those obligations of the debtor (defendant) that may no longer be performed due to changes in legislation, or even on those obligations that are directly contrary to the amended legislation.

For example, in 2015, a decision was made in defense of the rights of an indefinite number of consumers on the seller’s obligation to indicate the date of its registration on the price tags; in 2015 it would have entered into force, the executive document would have been submitted for execution in January 2021. But from 02.01. In 2016, clause 19 of the “Rules for the sale of certain types of goods” was amended to eliminate the obligation to indicate the date of issue on price tags. The bailiff initiates enforcement proceedings in full accordance with the law. The debtor informs the bailiff that currently the current legislation does not provide for such an obligation, to which the bailiff justifiably (meaning exclusively from the point of view of the Federal Law “On Enforcement Proceedings”) refers to the fact that he does not check the enforcement document for compliance with the law, but rather The main thing is that he does not have in his arsenal the ability to in any way terminate or terminate the enforcement proceedings. The debtor also has no opportunity to appeal the judicial act. Firstly, the deadlines may already be missed, and secondly, the norms of the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation do not allow the possibility of canceling such a judicial act.

In Art. 392 of the Code of Civil Procedure of the Russian Federation, a change in the law or other normative act does not apply to the grounds for reviewing court decisions that have entered into force due to new circumstances. Although it should be noted that the Federal Law of August 3, 2018 No. 340-FZ, among those provided for in paragraph 6 of Part 4 of Art. 392 of the Code of Civil Procedure of the Russian Federation, the grounds for review based on new circumstances, added “the establishment or modification by federal law of the grounds for recognizing a building, structure or other structure as an unauthorized construction, which served as the basis for the adoption of a judicial act on the demolition of an unauthorized construction.” A similar basis was introduced into the Arbitration Procedure Code of the Russian Federation by the same Federal Law No. 340-FZ dated August 3, 2018.

This selective attitude of the legislator to the issue of demolition is apparently due to the fact that demolition cases are high-profile. The Federal Law of August 3, 2018 No. 340-FZ “On Amendments to the Town Planning Code of the Russian Federation and Certain Legislative Acts of the Russian Federation” itself is “non-procedural” - procedural norms are secondary in this law. The lack of interest of the legislator in the issue of repealing judicial acts containing continuing obligations, prohibitions and restrictions is apparently associated with their non-widespread causality, with the existence of an idealistic vision of the prompt execution of judicial acts, with an idealistic vision of the stability of legislation. In addition, it should be noted that the category of cases involving claims in defense of the rights of an indefinite number of persons, as a result of which the majority of decisions on ongoing, (almost eternal) obligations, prohibitions and restrictions are made, have not been properly developed. The initially intended meaning of claims in defense of the rights of an indefinite number of persons has in practice been replaced by claims to eliminate violations of the law, and violation of the law and violation of rights are not identical phenomena. In addition, the legislator, having introduced the category of appeals in defense of an indefinite circle, did not take care to provide for the specifics of the execution of such judicial acts. In general, cases of protection of the rights of an indefinite circle are more public law cases than civil law ones. It is even surprising that the provisions on the protection of the rights of an indefinite number of persons were not transferred from the Code of Civil Procedure of the Russian Federation to the CAS of the Russian Federation in 2015. After all, firstly, the plaintiffs (applicants) of such appeals in fact are most often government bodies (prosecutor's office, Rospotrebnadzor, environmental authorities and so on); secondly, the protection of the rights of an indefinite circle in itself presupposes the public sphere of these legal relations.

What should the debtor do in this case? One hope is to rely on the reason and good faith of the plaintiff (collector) - so that the latter will revoke the writ of execution. It can be assumed with some confidence that this will not always be successful.

The set of funds provided for by the Federal Law “On Enforcement Proceedings” also does not inspire optimism. Articles 43 and 47 of the Federal Law “On Enforcement Proceedings,” which establish the grounds for termination and completion of enforcement proceedings, do not indicate our situation. Chapter 18 of this Law, as well as Section VII of the Code of Civil Procedure of the Russian Federation, provides for the possibility of appealing the decisions of the bailiff, but does not indicate the grounds for this. The only legal basis (at the level of legal principle) for the protection of such a debtor will be Art. 35 of the Code of Civil Procedure of the Russian Federation, according to which persons participating in the case must conscientiously use all their procedural rights. A claimant who sends a writ of execution with demands that contradict current legislation should not be executed. However, law enforcement agencies, as everyone knows, are not very willing to apply legal principles that are not supported by specific rules. And in what form to apply Art. 35 Code of Civil Procedure of the Russian Federation? The Code of Civil Procedure of the Russian Federation does not allow you to appeal the court decision itself. It remains to resolve the issue at the stage of enforcement proceedings. The bailiff himself will not decide the legality of the requirements contained in the executive document; he will initiate enforcement proceedings and will carry out enforcement actions and apply enforcement measures. The debtor can only appeal the decisions and actions of the bailiff.

Of course, I would like to believe that appealing the decisions and actions of the bailiff in such situations will end positively for such a debtor, but, firstly, as already mentioned, there are no clear legal grounds for this, and secondly, this is not a rational challenge, including the sense that the bailiff is not a source of legal harassment of the defendant (debtor).

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.

The procedure for the entry into force of the law and the loss of force of the law

The procedure for the entry into force of the law and the loss of force of the law

Thus, the ordinary (usual) procedure for a criminal law to come into force is that a new criminal law takes effect 10 days (more correctly, a day) after the day of its official publication, i.e. actually after zero hours on the eleventh day. The extraordinary procedure involves a reduction (less than 10 days) or an increase in the specified period. For example, the Criminal Code was adopted by the State Duma on May 24, 1996, published in Rossiyskaya Gazeta in June 1996, and came into force on January 1, 1997.

A criminal law that has entered into force is valid until it is repealed or replaced by a new law, as a result of which it is considered to have lost legal force and cannot be applied.

The repeal of a criminal law means a direct indication by the legislator that a specific law (in whole or in a specific part) is no longer in force. Ways to repeal a criminal law can be:

· publication of a law eliminating the legal force of a previous law;

· publication of a list of laws declared repealed due to the adoption of a new criminal law;

· an indication of the repeal in the law that replaces the previous one;

· an indication of repeal in the law establishing the procedure for enacting a newly adopted criminal law (as a rule, typical for the introduction of a new Criminal Code);

· the decision of the Constitutional Court of the Russian Federation, which recognized the norm of criminal law as inconsistent with the Constitution of the Russian Federation, provisions or principles of international law.

Time of commission of ongoing and continuing crimes

Continuing and ongoing crimes

A characteristic feature (sign) of a continuing and continuing crime is its duration in time. The difference between a continuing crime and a continuing crime is as follows. A continuing crime is not interrupted. Examples of such crimes from the Criminal Code of the Russian Federation: – Art. 157 of the Criminal Code of the Russian Federation. Malicious evasion of payment of funds for the maintenance of children or disabled parents (maybe both inaction and action); - Art. 224 of the Criminal Code of the Russian Federation. Careless storage of a firearm (maybe both omission and action); - Art. 316 of the Criminal Code of the Russian Federation. Covering up crimes (action); - Art. 328 of the Criminal Code of the Russian Federation. Avoidance of military and alternative civil service (inaction); - Art. 338 of the Criminal Code of the Russian Federation. Desertion (action);

Thus, a continuing crime is an action or inaction associated with subsequent long-term failure to fulfill the obligations imposed on the perpetrator by law under the threat of criminal prosecution (the concept of a continuing crime is given in the Resolution of the Plenum of the Supreme Court of the USSR of March 4, 1929 (as amended by the Resolution of the Plenum of the Supreme Court Court of the USSR dated March 14, 1963 N 1)).

A continuing crime is a series of identical criminal acts. The definition of “identical” refers to the corpus delicti, i.e. Each act has signs of the same crime, but in none of these acts the intent of the criminal is fully realized. All actions of the perpetrator are aimed at achieving a common goal. For example, Art. 117 of the Criminal Code of the Russian Federation “Torture” (the goal of the perpetrator is humiliation, mockery of the victim). A continuing crime can include receiving a bribe in parts (one hundred times one thousand rubles each) or stealing several bricks from a factory in order to build a country house.

Establishing the end of the commission of ongoing and ongoing crimes is important when applying an amnesty to them (Article 84 of the Criminal Code of the Russian Federation) or statute of limitations (Article 78 of the Criminal Code of the Russian Federation).

A continuing crime ends from the moment:
– the actions of the perpetrator (he himself came to the military registration and enlistment office, turned himself in, etc.); – actions of law enforcement agencies (detention of the culprit); – the occurrence of circumstances that make it impossible to further commit a crime (death of the perpetrator).
The ongoing crime ends

the moment of commission of the last criminal act.

The concept of retroactive KM

Retroactive force is the revisionary force of a norm. Such a rule “implies a review (audit) of the rights and obligations already regulated in accordance with previously existing legislation”[1].

First of all, we emphasize that the retroactive force of criminal law is a principle of Russian criminal law, that is, the fundamental basis for the administration of justice. “The retroactive force of a criminal law is the extension of a new criminal law to acts committed before its entry into force”[2].

The retroactive force of a criminal law is a principle of criminal law based on humanism as a philosophical and legal phenomenon, which is a set of requirements imposed by society on the state when it carries out law-making and law enforcement activities aimed at ensuring the rights and freedoms of man and citizen[3].

Some researchers, emphasizing the importance of the principle of retroactive force of criminal law, o[4]. We can only agree with this opinion, since, in our opinion, this principle must be placed alongside the presumption of innocence and other fundamental principles of Russian criminal law.

Let us turn to the content of Article 10 of the Criminal Code of the Russian Federation, aimed at regulating the institution of retroactive force of criminal law. The legislator in part 1 of the named article establishes:

"1. A criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who committed a crime, has retroactive effect, that is, it applies 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 with a criminal record. A criminal law that establishes the criminality of an act, increases punishment or otherwise worsens a person’s position does not have retroactive effect.”

So, a law that improves the situation of a person who has committed a crime, as well as excluding punishability, has retroactive effect, and vice versa, a law that worsens the situation of such a person, as well as establishing punishability, does not have retroactive effect. This rule does not provide for any exceptions.

It must be emphasized that the current Criminal Code of the Russian Federation for the first time at the legislative level resolved the dispute about whether the criminal law has retroactive force in relation to persons serving a sentence or having a criminal record (the so-called “revision” retroactive force of the criminal law).

In domestic criminal law science, the opinion about the extension of the law with retroactive effect to persons serving a sentence and having a criminal record was expressed by N.D. Durmanov, V.N. Kudryavtsev, M.I. held the opposite opinion. Bloom, I.I. Solodkin, A.A. Tille, M.D. Shargorodsky.

However, according to some researchers, the method chosen by the legislator to resolve this dispute does not seem to be entirely successful. “Selecting from the group of “persons who committed the relevant acts before the entry into force of such a law” persons “serving a sentence or having served a sentence but having a criminal record” is inappropriate, since these groups of persons are correlated as philosophical categories of part and whole. The second of them is fully included in the first, since all persons serving a sentence or having a criminal record at the time the new criminal law came into force also committed crimes before such a law came into force. Therefore, we believe that by indicating the first group of persons, the legislator has already resolved this dispute and the special identification of the second group of persons is not necessary at all”[5].

Let's turn to Part 2 of Art. 10 of the Criminal Code of the Russian Federation, it states: “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.”

As experts note, this provision is practically inapplicable. “When bringing previously passed sentences into compliance with the new criminal law, the court must be guided by strict, specific criteria, and not determine the punishment at its discretion “within the limits provided for by the new criminal law.” ...more fair, meeting the requirements of individualization of punishment, taking into account the role of each convicted person in the crime committed, would be an indication in the law of a reduction in punishment for all persons serving sentences under sentences passed before the entry into force of the new Criminal Code, in proportion to the mitigation by the new law of the upper limit of the most severe type punishments. The criminal codes of some former Soviet republics followed exactly this path.”

7. criteria for the comparative severity of the criminal law

a) eliminating the criminality of an act is a law that excludes public relations from the range of relations protected by criminal law; raising the age of criminal responsibility; narrowing the circle of persons subject to criminal liability; changing the types of guilt, establishing the motive and purpose of the crime. b) a law that mitigates punishment is one that reduces the lower or upper limit of punishment; excluding the most severe type of punishment from the alternative sanction; including in the sanction the mildest of the types of punishment provided for by it; excluding the type of punishment served by a person. c) another improvement in the situation of the person who committed the crime is a law amending the norms of the General Part regulating the issues of sentencing and entailing the obligation of the court to impose punishment taking into account the achievement of its goals; reducing statutes of limitations and criminal records; amending the norms of the General and Special Parts governing the release of a person from criminal liability. FULL TEXT OF DOCUMENT

Types of interpretation

Depending on the subject who interprets the law, voting can be legal, judicial and doctrinal (scientific). Legal (or authentic) is an interpretation that comes directly from the legislator. As an example, notes to articles of the Criminal Code are usually given, containing definitions and explanations of certain terms. These are, for example, the note to Art. 139, explaining the concept of “dwelling”, note to Art. 285, defining the concept of “official”.

Judicial interpretation is the interpretation of the provisions of the law directly by the court authorized to administer justice in criminal cases. Three types of judicial interpretation can be distinguished: a) interpretation given by the Constitutional Court of the Russian Federation, which is mandatory for all government bodies, organizations and individuals; b) interpretation of the criminal law in relation to the circumstances of a specific criminal case by the court considering it (first, cassation, appeal, supervisory instances); c) interpretation made by the Supreme Court of the Russian Federation on the application of norms, institutions and other provisions of the Criminal Code in accordance with Art. 126 of the Constitution of the Russian Federation.

The interpretation of the criminal law, which the court carries out when considering a specific criminal case, is intended to ensure the correct application of its norms to a specific case. Therefore, it has meaning mainly in connection with the passing of a sentence and is called casual (from the word “casus” - case).

Depending on the method of interpretation, the following types are distinguished: grammatical, logical, historical, systematic. In fact, in the process of understanding the content (meaning) of the criminal law, they are applied in the system.

Grammatical interpretation is based on understanding the meaning of the norms of criminal law, taking into account the rules of grammar and syntax - the meaning of individual words, terms, methods of constructing text, the use of punctuation marks, etc.

Logical is an interpretation that is based on the laws of formal logic.

In a systematic interpretation, a criminal law norm is compared with other norms of the General or Special Part of the Criminal Code, as well as with the norms of other branches of law. This is especially important for understanding the meaning of articles of the criminal law that have blanket or reference dispositions. The true content of a criminal law norm can often be revealed only in comparison with the norms of other articles of the Code (with a reference disposition) or with the provisions of normative legal acts of another industry (with a blanket disposition)

Historical is an interpretation in which an article of law (criminal law norm) is analyzed in a retrospective aspect, i.e. taking into account the social situation of its adoption, which determined the immediate goal set for it, the provisions of previously existing (repealed) legislation that provided for the corresponding regulatory provision.

In terms of scope, interpretation is usually divided into literal, restrictive, and expansive . The first of them is an interpretation of the meaning of the criminal law in strict accordance with its letter, without deviating from the generally accepted understanding of the terms and concepts used in it. In principle, given the repressive nature of criminal law, the provisions of criminal law, as a rule, should be interpreted literally.

Two other techniques (methods) of interpretation can be used when the legislator has given a broader or, conversely, narrower meaning to a criminal law norm than directly follows from the text of the criminal law. In this regard, it should be noted that the acceptability of a broad (distributive) interpretation of the criminal law raises serious doubts, since it unreasonably expands the scope of criminal legal repression. If a literal and restrictive interpretation of the criminal law is necessary for the interpretation of criminal law norms, then a broad interpretation, based on the essence of criminal law, should not be characteristic of it.

the procedure for the entry into force of the law and the loss of force of the law

A criminal law that has entered into force is valid until it is repealed or replaced by a new law, as a result of which it is considered to have lost legal force and cannot be applied.

The repeal of a criminal law means a direct indication by the legislator that a specific law (in whole or in a specific part) is no longer in force. Ways to repeal a criminal law can be:

· publication of a law eliminating the legal force of a previous law;

· publication of a list of laws declared repealed due to the adoption of a new criminal law;

· an indication of the repeal in the law that replaces the previous one;

· an indication of repeal in the law establishing the procedure for enacting a newly adopted criminal law (as a rule, typical for the introduction of a new Criminal Code);

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.

The procedure for approval and entry into force of the law is provided for by Federal Law No. 5-FZ of June 14, 1994 “On the procedure for publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly.” Thus, referring to Articles 2 and 4 of the latter, the procedure for the adoption of a normative act and its entry into legal force is determined.

The date of adoption of the new provision is the date of approval of the document by the State Duma or other body. But such a document can be used only after publication in the media and preliminary familiarization with it by authorities and the population (usually after ten days).

The usual procedure for applying the law involves entry into force after ten days from the date of publication by a newspaper or the Internet on the official website.
In addition, there is an unusual (extraordinary) procedure for entry into force, which implies a shortened or extended period after publication of the bill. The period allocated for preliminary familiarization, clarification of the legal basis, correct understanding of all points, as well as guidance of the new regulatory act depends on the volume, content and importance of the document. It can be less than ten days or more (about a year).

In relation to the Criminal Code, namely Article 9 of the Criminal Code of the Russian Federation, the qualification of a crime under a new act is possible after ten days from the date of publication, provided that the offense was committed at the beginning of the next day.

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 over time

The effect of a law (regulatory act) in the most general terms is the state of real functioning (impact and legal regulation) of the provisions of the law (regulatory act) in a certain period of time, in a certain territory, in relation to a certain circle of persons (citizens, government organizations). As a general rule, the law applies to all citizens, organizations, government bodies, and associations.

In criminal law, the operation of the law in time and space is distinguished.

The operation of criminal law over time includes four main aspects:

· entry into force of the law;

· the law loses its legal force;

· principles of the law in time;

· time of commission of the crime.

1. The entry into force of a criminal law is regulated by Federal Law No. 5 of June 14, 1994 - Federal Law “On the procedure for the publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly.”

In accordance with Art. 2 of this Law, the date of adoption of a federal law is considered to be the day of its adoption by the State Duma in its final wording. So, for the Criminal Code of the Russian Federation this is May 24, 1996.

On the territory of the Russian Federation, only officially published laws apply. According to Art. 3 of the mentioned Law, they are published within 7 days from the moment of signing by the President of the Russian Federation. The official publication is considered the first publication of the full text of the law in the Rossiyskaya Gazeta or Collection of Legislation of the Russian Federation .

The law enters into legal force simultaneously throughout the entire territory of the Russian Federation.

In this case, there are two orders:

- the usual procedure (ordinary) for the entry into force of the law is established by Art. 6 of the said Law: “Federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly come into force simultaneously throughout the entire territory of the Russian Federation ten days after the day of their official publication”;

- an unusual (extraordinary) procedure provides for either shorter (less than 10 days) or longer periods. Thus, the Criminal Code of the Russian Federation came into force on January 1, 1997, more than six months after its publication.

2. The loss of legal force by a criminal law means that the law ceases to have effect and its provisions do not apply to those crimes that were committed after that. In the theory of criminal law, there are two grounds for the loss of legal force by a criminal law : repeal and replacement (actual repeal).

The abolition of a criminal law occurs in cases where it is abolished by a competent government agency and this is fixed in a legislative act:

a) by issuing an independent law that eliminates the legal force of another law;

b) by issuing a list of laws that have lost legal force due to the adoption of a new criminal law;

c) by indicating the repeal in a new criminal law replacing the previous one;

d) by indicating the repeal in the law on the procedure for enacting a newly adopted criminal law.

Replacing a criminal law means that the legislator adopts a new criminal law that regulates the same social relations as the old one, but does not officially repeal its effect.

3. Principles of operation of criminal law over time . There are three principles: immediate action, ultraactivity (“experiencing” the law) and retroactivity (retroactivity of the law).

The principle of immediate action (basic principle) means that a law that has entered into force acts only “forward” and extends its effect only to those social relations (crimes) that arose (committed) after its entry into force.

Ultraactivity, or “survival” of the law (exceptional principle), is characterized by the fact that the old law, as it were, outlives its allotted period and continues to operate and be applied in cases provided for by law. If the crime was committed during the operation of the old criminal law, then the old law must apply, even if by the time the criminal case is initiated, charged or sentenced, it has no longer been in force. Part 1 art. 9 of the Criminal Code of the Russian Federation states: “The criminality and punishability of an act are determined by the criminal law in force at the time of the commission of this act.”

Retroactivity, or retroactive force (exceptional principle), refers to the extension of the new criminal law to those crimes that were committed before it came into force, that is, during the period of validity of the old law. This principle is formulated in Art. 10 of the Criminal Code of the Russian Federation, according to which a law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of a person who has committed a crime, has retroactive effect, that is, it applies to persons who committed the corresponding act before the entry into force of such a law, including for persons serving or who have served a sentence, but have a criminal record.

Conversely, a criminal law that establishes the criminality of an act, increases punishment or otherwise worsens the position of the guilty person, does not have retroactive effect, that is, it does not apply to persons who committed the corresponding act before the entry into force of such a law.

Thus, in criminal law, only milder laws have retroactive effect. This is what the criminal law recognizes:

- decriminalizing a particular act;

- mitigating punishment, that is, it reduces the maximum or minimum amounts of the main or additional types of punishment, provides a more lenient type of punishment as an alternative, eliminates additional punishments that were previously mandatory, etc.;

- otherwise improving the situation of the person who committed the crime. These may include criminal laws that soften the regime of serving a sentence, expand the possibility of release from criminal liability or punishment, reduce the time frame for expunging or expunging a criminal record, etc. On the contrary, a more stringent law, that is, establishing the criminality of an act, increasing punishment or otherwise worsening the position of the person who committed the crime, does not have retroactive effect. It cannot be applied to crimes committed before its entry into force, that is, it applies to persons who have committed the relevant crime. In such cases, the principle of ultraactivity “works” - the action of the law of the time of committing a crime.

There are two types of retroactive law:

- simple - the extension of a new, more lenient criminal law to those crimes for which the court verdict has not yet entered into legal force;

- revision - the extension of the new, more lenient criminal law to those crimes for which the court verdict has already entered into legal force. Moreover, this sentence may already be carried out and the person may be serving or will have served the sentence, but have an outstanding or unexpunged conviction. In this case, criminal cases are subject to review, and sentences passed are subject to “revision” (Part 2 of Article 10 of the Criminal Code).

4. Time of commission of the crime . In the criminal law of civilized states, the crime committed is assessed according to the law in force at the time the crime was committed. The Constitution of the Russian Federation stipulates: “No one can be held responsible for an act that at the time of its commission was not recognized as an offense” (Part 2 of Article 54). This provision is reflected in Part 1 of Art. 9 of the Criminal Code, according to which the criminality and punishability of an act are determined by the law in force at the time the crime was committed.

Thus, the law prohibits the application of new criminal law norms to acts committed during a period when this norm did not exist, which corresponds to the principles of democracy and humanism.

In order to correctly apply the proper law, it is necessary to accurately determine the time when the crime was committed. In accordance with the legislative formulation (Part 2 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. This provision, according to a number of researchers, contradicts the definition of the concept of a completed crime (Part 1 of Article 29). In this regard, in the material elements of crimes it is proposed to consider the time of commission of the crime as the moment of the onset of socially dangerous consequences, and in formal and truncated elements - the commission of the act.

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.

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.