A completed crime is the final stage of criminal activity. In accordance with Part 1 of Article 29 of the Criminal Code of the Russian Federation, a criminal act is considered completed when all the elements of a crime are seen in it. At the same time, what is important is the correspondence of the perpetrator’s idea of the desired result with the actual circumstances of the case, that is, the full implementation of everything planned by him and the onset of corresponding dangerous consequences.
The concept and types of unfinished crime
Criminal law distinguishes three stages of an intentional crime: preparation, attempt and completed crime. They are understood as certain stages in the development of criminal activity, which differ in the nature, volume of actions performed (the degree of expression of the objective side of a particular crime) and the moment of cessation of criminal behavior. The stages reflect different degrees of implementation of a person’s criminal intent, which in turn affects the different degrees of social danger of the attack.
The stages, as a physical (objective) stage of human behavior, are preceded by a psychological stage, at which, taking into account various factors, certain motives are formed that prompt a person to act or inaction. In the theory of criminal law, this mental process in relation to a crime is called the formation of intent. Not manifested externally, i.e. not having its own objective expression, this stage is outside the scope of criminal law regulation. This statement is true because in criminal law the principle of responsibility for an act operates. For the same reason, “discovery of intent” is not punishable. The detection of intent is not socially dangerous, since it is not capable of causing harm to social relations protected by law and has a preventive rather than criminal legal significance.
Detection of intent should be distinguished from statements by persons containing threats or calls that are signs of a number of crimes, for example: threat to kill (Article 119 of the Criminal Code of the Russian Federation); public calls for extremist activities (Article 280 of the Criminal Code of the Russian Federation), etc. These cases are classified as completed crimes.
In accordance with Article 29 of the Criminal Code of the Russian Federation, preparation for a crime and attempted crime are recognized as unfinished crimes. In the theory of criminal law, these two stages are also usually united by the concept of “preliminary criminal activity.” In Part 1 of Art. 29 of the Criminal Code of the Russian Federation, a completed crime is an act that contains all the elements of a crime provided for by a specific article of the Special Part of the Criminal Code.
As previously noted, the stages of preparation for a crime and attempted crime pose a public danger, and therefore, the basis for criminal liability for their commission is the corpus delicti of an unfinished crime. The identification of stages in criminal law is a reflection of objective reality; their delimitation is based on the disclosure of objectively existing, and not consciously introduced, boundaries between these stages.
Preparation for a crime is an activity aimed at creating conditions that make it easier for the offender to subsequently commit a crime. In turn, an attempt is an act (action or inaction) directly aimed at committing a crime, but which was not completed due to circumstances beyond the control of the perpetrator.
What is the basis for bringing to criminal responsibility a person who did not complete the crime he started? In the science of criminal law, there are different approaches to solving this problem. The point of view of Professor N.D. seems convincing. Durmanov, who rightly pointed out that the crime includes all the signs outlined in the articles not only of the Special, but also of the General Part of the Criminal Code of the Russian Federation. In accordance with this, in the current legislation the content of Art. 30 is the legal basis for bringing to criminal liability persons who did not complete the crime due to circumstances beyond their control (Part 3 of Article 29 of the Criminal Code of the Russian Federation).
Stages may not occur when committing all crimes. This possibility is limited by a number of objective and subjective characteristics.
In Article 30 of the Criminal Code of the Russian Federation in parts 1 and 3, the legislator indicates the intentional nature of guilt when carrying out preliminary criminal activity. It should be noted that intent can only be direct. Preparation and assassination attempt are always conscious and purposeful activities. The person is aware of the socially dangerous nature of his behavior, desires and strives to achieve a criminal result.
On the objective side, stages are generally accepted as possible in crimes with a material element, regardless of the form of the act (action or inaction), and in crimes with a formal element, the possibility of an attempt is excluded if the act is committed by inaction, since the moment of the beginning of the latter already forms the completed crime.
The identification of stages is legally justified only when the person’s activity is stopped at the stage of preparation or attempt, but if the perpetrator, having undergone preparation for the crime, subsequently, while committing it, achieved a criminal result, there are signs of a completed crime, which absorbs all previous stages.
Establishing the stage of commission of an intentional crime has important practical significance. This is determined by the fact that when assigning punishment to a guilty person for an act he has committed, it is necessary to take into account the degree of social danger of the act. The assessment of the latter depends, among other things, on the stage at which the criminal activity was stopped. According to general recognition, enshrined in law today, an attempt is more dangerous than preparation, and a completed crime is more dangerous than an attempt, and therefore, each subsequent stage entails a more severe punishment.
The doctrine of the stages of committing an intentional crime is based on the objective process of human behavior, which goes through certain stages in its development: the formation of a plan, the creation of conditions for its implementation, the actual actions and the achievement of the desired result. For educational purposes, the question of the stages of committing a crime must be studied in the following order: 1. Preparation for a crime; 2. Attempted crime; 3. Completed crime.
Ongoing tax crime: problems and solutions
The draft resolution of the Plenum of the Supreme Court of the Russian Federation dated June 6, 2019 “On the practice of courts’ application of criminal legislation on liability for tax crimes” (hereinafter referred to as the Draft) caused heated debate in the professional community, primarily due to the reference to tax crimes in its text (Article .Articles 198, 199, 199.1 of the Criminal Code of the Russian Federation) as continuing (paragraph 3 of clause 3 of the Project). We can confidently say that this initiative is generally assessed critically by the legal community. So, on the website zakon.ru I was not able to find a single publication in support of an ongoing tax crime. A similar picture is observed in profile printing. At the same time, the range of critical opinions varies from complete denial of the category of a continuing act, to indignation at the virtually indefinite criminal prosecution for tax crimes and disavowal of the “capital amnesty”.
The current situation prompted me to express my thoughts on the initiatives proposed by the Supreme Court, since, firstly, I do not consider them innovative (this is just a statement of fact, nothing more), and secondly, the overwhelming majority of counterarguments expressed by colleagues, in my opinion, although they deserve attention, they are untenable from the point of view of the theory of criminal law and the notorious logic of the law. And finally, someone needs to stand up for ongoing tax crimes. Why not me?
Given the significant volume of material, if desired, it can be downloaded in PDF format from the link below:
https://www.phplaw.ru/upload/iblock/507/A.A.%20Gurov.%20Continuing%20tax%20crime.%20Problems%20and%20solutions..pdf
Genesis of an ongoing crime
The purely applied meaning of the category of ongoing crime is to distinguish a single criminal activity from those cases when a person commits several crimes, that is, from a plurality of crimes. In other words, by defining this or that act as ongoing, the law enforcement officer strives to prevent a person from being repeatedly brought to criminal liability for a set of crimes in cases where he actually commits, albeit complex in its structure, but still an isolated crime. In this regard, the European Court of Human Rights in one of its decisions[1] notes that Art. 4 of Protocol No. 7 to the Convention should be interpreted as prohibiting prosecution or trial for a second “offence” if they arise from identical facts or facts that are substantially the same.
The very category of a continuing crime as an objectively existing phenomenon was known to both domestic and foreign (primarily German) criminal law long before the continuing tax crime, which was repeatedly cited by critics, was the resolution of the 23rd Plenum of the Supreme Court of the USSR dated March 4, 1929 “On the conditions for the application of limitation and amnesty for ongoing and ongoing crimes” (hereinafter referred to as the resolution of the 1929 Plenum). For example, the mention of a “continuously ongoing” crime is contained in Art. 167 Code of Criminal and Correctional Punishments of 1845. N.S. Tagantsev understood a continuing crime as one that, once committed, does not end with that moment, but is constantly and continuously renewed, forming, as it were, a criminal state of a person, connecting in the eyes of the law all his activities into a single whole, lasting until the end of this activity, until the onset of which - circumstances indicating its termination (factum contrarium)[2].
The resolution of the 1929 Plenum, which appeared at the end of the NEP, initially reproduced the formula of a continuing crime proposed by N.S. Tagantsev. Thus, a continuing crime was recognized as an action “that entails a continuously ongoing criminal state or a long-term failure to perform actions required by law under pain of criminal prosecution”[3].
Subsequently, the category of continuing crime was devoted, for example, to the works of A.A. Piontkovsky, who considered a crime to be ongoing “where the crime, once committed, continuously continues to exist until the occurrence of circumstances that eliminate it” [4].
In 1963, the Plenum of the Supreme Court of the USSR amended the resolution of the 1929 Plenum, as a result of which a definition of a continuing crime was born, which is relevant at the present time. In the current legal framework, it is proposed to consider an action or inaction associated with a subsequent long-term failure to fulfill the obligations imposed on the perpetrator by law under the threat of criminal prosecution as continuing. Today, continuing crimes in law enforcement practice directly refer to evasion from military and alternative civil service (Article 328 of the Criminal Code of the Russian Federation) and desertion (Article 338 of the Criminal Code of the Russian Federation)[5], as well as escape from a place of imprisonment, from arrest or from - into custody (Article 313 of the Criminal Code of the Russian Federation)[6]. There is also no doubt about the ongoing nature of crimes related to the illegal possession of drugs (Article 228 of the Criminal Code of the Russian Federation) and weapons (Article 222 of the Criminal Code of the Russian Federation). This list can be continued.
Thus, at present, neither science nor law enforcement practice experiences any fundamental difficulties in using the category of a continuing crime. All the more strange in this regard is the opinion of some colleagues that the absence of a definition of a continuing crime in the criminal law makes its application to tax structures incompatible with the principle of legality and legal certainty. Excuse me, but nowhere in the criminal law does it say what, for example, the elements of a crime are. However, this does not prevent the successful use of this category in theory and law enforcement, taking into account its doctrinal meaning.
Continuing tax crime: pro ...
However, the fundamental ability of a law enforcement officer to operate with the category of a continuing crime does not mean at all that tax offenses automatically become continuous. As N.S. noted. Tagantsev, in order to recognize a known criminal act as continuing, it is certainly necessary that that component of the act in which the law sees its criminal essence be continuously renewed[7]. What is the criminal essence of the tax composition?
In paragraph 1 of the still valid resolution of the Plenum of the Supreme Court of the Russian Federation dated December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes” [8] (hereinafter referred to as Plenum Resolution No. 64) it is stated that tax evasion and fees is a deliberate failure to fulfill the constitutional obligation of everyone to pay legally established taxes and fees. Therefore, the crime of tax evasion is interpreted by the highest judicial body primarily through the prism of failure to fulfill the obligation imposed on a person by law. That is, it is not the failure to provide a tax return or other documents to the tax authority itself that is criminal (or the provision of false information), but inaction (in the sense of a behavioral act) through failure to fulfill the obligation to pay taxes, which leads to a specific criminal result in the form of non-receipt of funds to the budget in a large or especially large size. Here it must be borne in mind that the obligation of everyone to pay legally established taxes and fees does not end with the fact of their non-payment[9], it continues to exist until it is terminated in one of the ways provided by law. That is, in this case, there is a continuing criminal state of non-payment of taxes or, as V. Sabler once wrote, an “illegal relationship” [10] between the draft dodger and the budget, which continuously lasts over time. The culprit sleeps, eats, goes on a tourist trip, but at the same time, at any time and in any place, he continuously commits the same identical act (tax evasion). This characteristic of a criminal state, when an identical (not identical, but identical) act is continuously committed, makes it possible to distinguish ongoing crimes from simple single or complex ongoing ones.
Here, apparently, it is necessary to make some lyrical digression. In the process of becoming familiar with the arguments of critics of a continuing tax crime, I have repeatedly encountered attempts to show the absurdity of a continuing tax crime by comparing it with a simple single theft. They say tax evasion is akin to fraud (it is even sometimes called “tax fraud”), but fraud, like all other types of theft, is not a continuing crime. I completely agree with this. Theft is not a continuing crime, but who said that tax evasion is a type of theft? In case of evasion, property is not confiscated from the owner; on the contrary, the owner saves, illegally saves his property, which, in fact, is the criminal purpose of evasion. If we compare tax compositions in this sense, then with the composition of causing property damage by deception or abuse of trust (Article 165 of the Criminal Code of the Russian Federation). Let’s imagine that a person “tweaked” the electric meter, as a result of which he illegally saved part of his property, and the energy supply organization suffered damage in the amount of this lost part. What statutory obligation, the failure of which entails criminal liability, is associated with the act here? If the obligation is to pay what is due under the contract (to properly fulfill the contract), then this is not a legal, but a contractual obligation. If you compensate for the damage caused, then failure to fulfill it is not a crime (there is no offense that would punish failure to fulfill the obligation to compensate for the damage caused by the crime). So it turns out that in this case the very fact of manipulating the electric meter is considered criminal, provided, of course, that such manipulations caused damage on a large scale. Under certain circumstances, such an act may be recognized as a single continuing crime (periodically “twisted”), but never lasting.
Tax evasion is a different matter. The constitutional obligation of everyone to pay legally established taxes exists regardless of the act aimed at non-payment, and does not end with the very fact of non-payment. Failure to fulfill such an obligation is prohibited by criminal law under threat of punishment, which means that the criminal state of non-payment after the corresponding act will last until it is interrupted on the grounds provided by law.
In other words, a tax crime, by its nature, continues regardless of whether the Supreme Court indicated this in its ruling or not.
… et contra
One of the key arguments of opponents of the ongoing tax crime is the reference to Part 1 of Art. 29 of the Criminal Code of the Russian Federation. A crime is considered completed if the act committed by a person contains all the elements of a crime provided for by the Criminal Code of the Russian Federation. From the moment the tax is not received into the budget in the appropriate amount and on time, they reason, the person’s act will contain all the signs of evasion, and, therefore, it (the act) is over. Once the act is completed, then the crime is completed, and it can no longer be committed. In other words, there is nothing to last here.
At first glance, everything seems logical, but one cannot agree with such conclusions. Let's go from the opposite. If the above reasoning were correct, then continuing crimes would not exist at all. Let's take desertion. From the moment of leaving the place of duty for the purpose of evasion, all the signs of a completed composition are visible, that is, according to the logic of my opponents, desertion is completed and it can no longer be committed. However, for some reason the Supreme Court considers this crime to be ongoing and no one seems to argue with this. The question arises why a continuing crime continues contrary to Part 1 of Art. 29 of the Criminal Code of the Russian Federation?
To answer the question posed, let’s look at which chapter the legislator placed Art. 29 of the Criminal Code of the Russian Federation. Chapter 6 of the Criminal Code of the Russian Federation is called “Unfinished Crime”. Here, in addition to the completed crime, it is explained what is considered preparation and attempted crime (unfinished crime), and in what cases voluntary renunciation of the crime is possible. The definition of a completed crime in this case is necessary in order to separate unfinished criminal activity, which has less social danger, from completed, more socially dangerous activity. In other words, in the case of ongoing crimes, Part 1 of Art. 29 of the Criminal Code of the Russian Federation must be understood not in the sense that a completed crime is considered completed (there are no grounds for this), but in such a way that from the moment the crime is completed, it is no longer either preparation or attempt and, therefore, it is impossible to voluntarily refuse. P.S. Yani formulated this feature of a continuing crime this way: a continuing criminal act is not completed until it is interrupted, but if interrupted at any moment after the start of the execution of the crime, it is regarded as completed, and not as an attempt [11].
The fact that in the case of simple isolated crimes, they end and cease at the same moment should not confuse us. Continuing crimes are complex because they have their own specifics, but the criminal law is written for all categories of crimes, and not just for simple offenses, as some colleagues obviously think.
Thus, in the example we have given, from the moment of leaving the place of service for the relevant purposes, the person’s act cannot be qualified as unfinished desertion, which means that a voluntary refusal to commit a crime is also impossible. But this does not mean that desertion has stopped. On the contrary, it continues to occur in a legally completed state until it is actually terminated.
The same goes for tax crime. The arrival of the tax payment deadline marks the moment from which a person’s cessation of actions aimed at committing a crime can no longer be regarded as a voluntary refusal to commit a tax crime. The Supreme Court speaks about this unambiguously: “If the taxpayer has not submitted a tax return or other documents, the submission of which is mandatory in accordance with the legislation of the Russian Federation on taxes and fees (Article 23 of the Tax Code of the Russian Federation), or has deliberately included it in the tax return or in these documents false information, including in cases of submitting an application to the tax authority to supplement and amend the tax return after the deadline for filing it, but then before the expiration of the deadline for paying the tax and (or) fee, the amount of the obligatory contribution was paid (clause 4 of Article 81 of the Tax Code of the Russian Federation), having voluntarily and finally refused to complete the crime (part two of Article 31 of the Criminal Code of the Russian Federation), then in his actions the corpus delicti provided for in Article 198 or Article 199 of the Criminal Code of the Russian Federation is absent” (clause 14 of the Plenum Resolution No. 64). Consequently, voluntary renunciation of a tax crime is possible only before the expiration of the deadline for paying the tax and (or) fee, but this does not mean that after the expiration of such a period, a continuing tax crime will be considered committed.
In connection with the problem under consideration, the doctrine of a continuing crime distinguishes two moments of the end of such an act: legal and factual. Different scientists use different terminology to refer to these categories, but essentially they come to a common denominator. The legal termination of a continuing crime makes it possible to distinguish between completed and unfinished criminal activity. The actual termination (cessation of a criminal state) allows you to choose the applicable criminal law and determine whether there are grounds for exemption from criminal liability. To date, para. 3 paragraph 3 of the resolution of the Plenum No. 64, the wording of which in the Draft, in fact, caused the main barrage of criticism, determines only the moment of the legal end of the ongoing tax crime. It is not difficult to notice that of the two options proposed by the Project for paragraph 3 of paragraph 3, the first describes both moments of the end, and the second only the actual one. This is the fundamental difference between the current resolution of the Plenum No. 64 and the Project.
Since the main stumbling block to recognizing a tax crime as continuing seems to be problems associated with the moment of the actual end of such crimes, let us dwell on them in more detail.
Perpetual tax crime
Any criminal act is of course. Otherwise, no criminal could be held accountable for the completed crime. There is a moment of actual completion for a continuing act, however, unlike a simple single crime, it can occur both at the will and against the will of the person who committed it. From the moment the ongoing crime actually ends, the statute of limitations for criminal prosecution begins to run.
In accordance with paragraph. 3 paragraph 4 of the Plenum of 1929, the statute of limitations for criminal prosecution in relation to ongoing crimes is calculated from the time of their termination at the will or against the will of the perpetrator (voluntary performance by the perpetrator of his duties, surrender, detention by authorities, etc.).
Paragraph option Clause 3 of the Draft says the following on the same subject. Based on the fact that the crimes provided for in Articles 198 and 199 of the Criminal Code of the Russian Federation are ongoing, the statute of limitations for criminal prosecution is calculated from the moment of their actual completion, in particular from the date of voluntary repayment or collection of arrears in taxes, fees, and insurance premiums.
The practical aspects of the actual end of a continuing tax crime are not adequately worked out in the Draft, which is why they cause justified criticism from the point of view of problems of law enforcement. The issue of social justice comes first here. Indeed, with this approach, after a very long period of time, for example 15 years from the date of non-payment of tax, the perpetrator will be subject to criminal liability and punishment even for a tax crime of minor gravity (Part 1 of Article 199 of the Criminal Code of the Russian Federation), while the person, then Those who have committed a particularly serious crime, for example murder (Part 1 of Article 105 of the Criminal Code of the Russian Federation), after the same 15 years will be released from criminal liability due to the expiration of the statute of limitations. A logical question arises: is it justified to assert that the social danger of a tax crime of minor gravity remains relevant for a period of time during which even such a particularly serious crime as intentionally causing the death of another person loses it?
It is difficult to answer this question unambiguously, since the loss of its social significance by a continuing tax crime over time, at first approximation, is beyond doubt. In this regard, some authors propose to specifically stipulate the end point of ongoing crimes in their so-called unlimited version, which include ongoing tax crimes[12]. However, firstly, such an approach will essentially only mean an artificial, unjustified legal interruption of criminal activity, which, moreover, for obvious reasons, does not fundamentally solve the problem. Secondly, and on this I agree with S.A. Silaev, this problem can well be solved with the help of already existing types of exemption from criminal liability and punishment (if, of course, the ongoing crime itself and the person who committed it have actually lost the property of a public danger over time)[13]. We are talking, for example, about the provision of Art. 80.1 of the Criminal Code of the Russian Federation, which allows for exemption from punishment due to changes in the situation.
Finally, it should be noted that the question formulated can already be asked in relation to other ongoing crimes of minor gravity. I am not aware of any critics of ongoing tax crime complaining about the unreasonably long statute of limitations for criminal prosecution, for example, for possession of a significant amount of narcotic drugs. But this is also an indefinite, ongoing crime of minor gravity. Why is tax crime better?
Event preventing the commission of a continuing tax crime
There is another problem of actually ending the ongoing tax crime, which, unfortunately, the Project undeservedly ignored. In paragraph 4 of the resolution of the 1929 Plenum, the moment of the end of a continuing crime is associated with the onset of events that prevent the commission of a crime, which include the intervention of law enforcement agencies. However, neither the text of the resolution of the 1929 Plenum nor the Draft explains what is considered such interference in the case of a continuing tax crime. The only mention of such an event can be found in paragraph. 3 paragraph 4 of the resolution of the Plenum of 1929, where one of the moments of cessation of a continuing crime is called detention by authorities. It is obvious, however, that in the case of a continuing tax crime there may not be one at all. Does this mean that in the absence of detention, the entire period of criminal proceedings from the moment the criminal case is initiated until the verdict is passed, a tax crime is still committed?
The answer to this question must be negative. In this case, one should proceed from the fact that the intervention of law enforcement agencies, capable of authoritatively stopping a criminal state, is objectively possible only under the conditions of a special preliminary investigation procedure. Thus, from the moment a criminal case is initiated, the investigator has the obligation not only to establish all significant circumstances of the crime, but also by virtue of Art. 160.1 of the Code of Criminal Procedure of the Russian Federation to ensure compensation for damage caused by the crime. At the same time, the beginning of the statute of limitations for criminal prosecution cannot be made dependent on the effectiveness of the work of the preliminary investigation body. Therefore, say, the impossibility of identifying a person involved in the commission of a crime for a long time should not prevent in this case the recognition of an ongoing crime as actually completed, since the fact of evasion has been established, and the obligation to carry out criminal prosecution of a specific guilty person, due to the principle of publicity, lies entirely with the preliminary investigation body and the prosecutor, as responsible participants in criminal proceedings on the part of the prosecution. It is assumed, therefore, that their effective work should inevitably lead to the actual cessation of criminal activity, if, of course, such is confirmed during the preliminary investigation. From the moment the criminal case is initiated, the only basis for suspending the limitation period will be, as follows from the provisions of Part 3 of Art. 78 of the Criminal Code of the Russian Federation, evasion of the perpetrator from the investigation and trial. Therefore, the intervention of law enforcement agencies, which actually ends (interrupts) a continuing tax act and the statute of limitations for criminal prosecution begins to run, should be considered the moment of initiating a criminal case on the grounds of a continuing tax crime. It is this thesis that I would like to see in paragraph. 3 clause 3 of the Project.
Applicable criminal law for a continuing crime
It is well known 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, and a criminal law that establishes the criminality of an act increasing the punishment or otherwise worsening the situation of a person, does not have retroactive effect (Article 10 of the Criminal Code of the Russian Federation).
Let’s imagine a situation where a person commits evasion from paying corporate tax on a large scale, say, today, and after 5 years the legislator decides that the maximum sentence under Part 1 of Art. 199 of the Criminal Code of the Russian Federation will amount to 4 years of imprisonment instead of today’s 2 years (that is, Part 1 of Article 199 of the Criminal Code of the Russian Federation from the category of minor gravity becomes a crime of medium gravity). Let us also assume that after another year the crime is detected by law enforcement agencies, which raises the question of what criminal law should be applied. If the crime committed is not ongoing, then by virtue of Art. 10 of the Criminal Code of the Russian Federation is subject to application of a “softer” law. However, in the case of a continuing tax crime, the new criminal law, according to the literal interpretation of the provisions of Art. 10 of the Criminal Code of the Russian Federation will have retroactive effect even though it increases the punishment. The fact is that in the above example, at the time the new criminal law came into force, the ongoing tax crime had not yet been committed, it was only being committed. Moreover, it continued for a whole year after the new law came into force, until it was actually ended by the intervention of law enforcement agencies.
Thus, a paradoxical situation arises when strict compliance by the law enforcement officer with the criminal law in relation to a continuing tax crime will mean bringing the perpetrator to criminal liability to a degree greater than that to which he was objectively guided at the time the crime began.
The Presidium of the Supreme Court of the Russian Federation with reference to Part 1 of Art. 9 of the Criminal Code of the Russian Federation clearly spoke on this matter in the sense that if part of the objective side of a continuing or ongoing crime was committed during the period of validity of the new law (regardless of whether it is more lenient or more severe), then the new criminal law should be applied[14] . From the standpoint of the logic of the law, this thesis is beyond doubt.
However, there is another point of view, which seems to me correct. The classification of a continuing crime under the law in force at the time of the actual completion of the act actually resembles objective imputation. Regardless of whether a person knew or did not know at the time of committing a crime that the subsequent criminal law would recognize the act he was committing as more socially dangerous (hence entailing stricter liability), supporters of the criticized position propose to hold such a person accountable according to the law that is objectively in force at the time of the actual end of the crime. Relatively speaking, a person is asked to be held accountable for committing something that was not yet provided for by law at the time the act was committed. An analogy is appropriate that a socially dangerous act committed before the entry into force of a criminal law defining this act as a crime is under no circumstances recognized as such[15].
Therefore, in my opinion, the applicable criminal law in this case should be determined at the time of not the actual, but the legal end of a continuing tax crime, when the act acquires its, so to speak, legal finality. This approach, reflected in the Project, will be more consistent with the principles of legality, justice and guilt than the above blind adherence to the letter of the law.
Retroactive interpretation
In the discussion about the Project, it seems to go without saying that its effect will automatically extend to the actions preceding its adoption. This understanding leads some colleagues to believe that the adoption of the Project, for example, will deal a serious blow to the “capital amnesty”, which will simply stop working. The fact is that the guarantees regarding exemption from criminal liability provided by the Federal Law of June 8, 2015 No. 140-FZ “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation” ( hereinafter referred to as Federal Law No. 140), apply to acts committed BEFORE the time periods specified therein. If the tax crime is ongoing, then it is still ongoing, and therefore, the corresponding guarantees will not apply to declarants. The crime is still being committed. There are no DOs yet.
This is a serious problem, the correct resolution of which depends on the answer to the question: should the interpretation proposed by the Draft have retroactive effect?
Let me say right away that there is no clear answer to the question posed. First of all, is the Supreme Court's clarification a source of criminal law or not? Any third-year student will say no, and he will be right. But there are other opinions. As a rule, clarifications of the Supreme Court of the Russian Federation are not recognized as a formal source of criminal law. Being an act of interpretation of the law, such clarifications only reveal the meaning of the interpreted norm. However, although the rule of law itself does not change, its meaning, being interpreted by the highest judicial body in one way or another, directly affects law enforcement practice. Therefore, we can safely say that the Supreme Court of the Russian Federation actually carries out normative regulation by interpreting the criminal law, an example of which is, say, paragraph 26 of the resolution of the Plenum of the Supreme Court dated November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement,” adding an additional clause (“..., the range of which is not limited.”), the Supreme Court of the Russian Federation significantly expanded the scope of application of the rules on theft.
To argue the author’s position on this issue, it is necessary to provide an extensive quotation from the Resolution of the Constitutional Court of the Russian Federation of January 21, 2010 No. 1-P. Here is what he writes on the issue that interests us: arising from Part 1 of Art. 54 of the Constitution of the Russian Federation, the inadmissibility of giving retroactive effect to normative regulation through an interpretation that worsens the position of a person in his relations with the state is due, among other things, to the requirement of formal certainty of the legal norm, which presupposes that participants in the relevant legal relations must be able to reasonably foresee the consequences of their behavior and be confident in the invariability of their officially recognized status, as well as acquired rights and obligations; ...in any case, it is unacceptable to give retroactive force to the interpretation of legal norms that worsens the position of the subordinate (weak) party in public legal relations[16].
Thus, in order for taxpayers (in this context, tax evaders) to be confident in the invariability of their official status, as well as the rights acquired by Federal Law No. 140, it is necessary to refuse to give retroactive effect to regulatory regulation through the Draft’s interpretation of the criminal law. From a practical point of view, this means that the provisions of the Draft concerning the determination of the moment of legal and actual termination of a continuing tax crime, as well as the procedure for calculating the statute of limitations for criminal prosecution in this category of criminal cases, should be applied to the offenses, the beginning of which falls on the period of time after the entry into force by virtue of the relevant decision of the Plenum of the Supreme Court of the Russian Federation. As we can see, all the necessary legal prerequisites for this already exist. The matter, as they say, is small: that the specified provision is reflected in the text of the Project.
Epilogue
In conclusion, I would like to reassure the reader who fundamentally disagrees with me. Despite what seems to me to be reasonable arguments in favor of a continuing tax crime, the Project in its current form will most likely not be adopted. And the point here is not that its text is imperfect. This can be easily corrected. The concept of a continuing tax crime is fundamentally unacceptable for those who, in fact, form the budget of the Russian Federation. I mean large business, which, as can be judged from publications in the media, sees in this concept significant risks of retrospective liability in conditions of permanent legal uncertainty. In addition, a continuing tax crime does not fit into the currently fashionable legal concept “
doing business". However, this is not the main thing. The general vector of discontent, unfortunately, is quite justified. Any regulatory regulation, even impeccable from a scientific point of view, can be reduced to zero by its ugly implementation, as they say, “on the ground.” And if tomorrow we see a new resolution of the Plenum of the Supreme Court of the Russian Federation, in which there is not a word about the ongoing tax crime, it will be a merciless verdict of business on the entire existing law enforcement system, which is not capable of normally implementing any, even reasonable, legal initiatives. And rightly so!
[1] Resolution of the ECHR dated February 10, 2009 “Case “Sergey Zolotukhin” v. Russian Federation” (complaint No. 14939/03).
[2] Tagantsev N.S. Russian criminal law. Tula: Autograph, 2001. T. 1. P. 351.
[3] Collection of current decisions of the Plenum of the Supreme Court of the USSR 1944-1957. M., 1958. P. 75.
[4] Piontkovsky A.A. The doctrine of crime. M., 1961. P. 638.
[5] Paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 3, 2008 No. 3 “On the practice of courts considering criminal cases of evasion of conscription for military service and military or alternative civil service.”
[6] Ruling of the Supreme Court of the Russian Federation dated May 12, 2005 No. 67-o05-28.
[7] Tagantsev N.S. Russian criminal law: Lectures. The general part. M.: Nauka, 1994. T. 2. P. 281.
[8] The above provision of paragraph 1 remains unchanged in the Draft.
[9] A closed list of grounds for termination of the obligation to pay a tax or fee is contained in Art. 44 Tax Code of the Russian Federation.
[10] Sabler V. On the meaning of prescription in criminal law. Moscow: Printing house t-va. Rice. 1872. P. 70.
[11] Continuing crimes with material components. On the issue of qualification of criminal tax evasion (Yani P., “Russian Justice”, 1999, No. 1).
[12] A.P. Kozlov, A.P. Sevastyanov. Single and multiple crimes: Legal Center-Press; Saint Petersburg; 2011. pp. 50 – 51.
[13] Silaev S.A. On the issue of ending a continuing crime // Russian Legal Journal. 2013. No. 3. P. 146 - 153.
[14] Answers to questions received from the courts on the application of Federal Laws of March 7, 2011 No. 26-FZ “On Amendments to the Criminal Code of the Russian Federation” and of December 7, 2011 No. 420-FZ “On Amendments to the Criminal Code of the Russian Federation and certain legislative acts of the Russian Federation" (approved by the Presidium of the Supreme Court of the Russian Federation on June 27, 2012) // Bulletin of the Supreme Court of the Russian Federation. 2012. No. 11.
[15] Inogamova-Khegai L.V. Conceptual foundations of competition in criminal law: monograph. M.: NORMA, INFRA-M, 2015. 288 p.
[16] Para. 2 clause 3.2 of the resolution of the Constitutional Court of the Russian Federation dated October 17, 2017 No. 24-P “In the case of verifying the constitutionality of paragraph 5 of part four of Article 392 of the Civil Procedure Code of the Russian Federation in connection with complaints from citizens D.A. Abramova, V.A. Vetlugaev and others.”
Preparing for a crime
The current criminal law (Part 1 of Article 30 of the Criminal Code of the Russian Federation) defines preparation for a crime as the search, manufacture or adaptation by a person of means or instruments for committing a crime, the search for accomplices to a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if at the same time the crime was not completed due to circumstances beyond the control of this person.
Preparation is any intentional, that is, conscious, purposeful activity that creates conditions for the commission of a crime in the future, but is not realized into a completed crime due to circumstances beyond the will of the perpetrator. Preparatory actions differ from the detection of intent in that there are already specific actions, and not intentions to commit a crime. Preparation differs from the next stage of an intentional crime in that it only poses a threat to the object of the crime and creates a kind of springboard that facilitates the commission of a crime in the future. The danger of the criminal’s intentions, the performance of specific actions that create conditions for the implementation of criminal intent in the future, are the basis for the person’s responsibility for preparation. There can be no preparation for a crime in general - criminal liability is possible only for preparation to commit a specific crime provided for in the Special Part of the Criminal Law.
From the objective side, preparation can form one of the following actions: 1) finding, manufacturing or adapting means or instruments for committing a crime; 2) finding accomplices in the crime; 3) conspiracy to commit a crime; 4) other deliberate creation of conditions for the commission of a crime.
The search for instruments or means of committing a crime means any method of acquiring them. It can be legal - purchase, discovery, receipt as a gift, in exchange, etc. The method of acquisition can also be illegal - theft, extortion, vehicle theft, illegal acquisition of weapons, etc.
Manufacturing refers to the technological process of creating means and instruments for committing a crime, which can be carried out both in industrial conditions and in artisanal ones. This could be the preparation of clichés for printing counterfeit money or securities, or the manufacture of a special crowbar for opening locked premises. The main distinguishing property of manufacturing is that these tools and means are made anew, and not by processing any item.
A device is a deliberate action aimed at modifying the properties of an object, its partial processing - for example, design changes in a gas weapon for use as a firearm, shortening the barrel of a hunting rifle, making a rest for a kitchen knife, etc.
The means of committing a crime are understood as objects of the material world that contribute to the commission of an attack and facilitate its commission in the future. These could be poisons, vehicles, fake documents, certain physical and chemical processes, etc.
In contrast to means, instruments are objects that the criminal uses in the process of directly executing a crime, that is, fully or partially fulfills the objective side of the crime.
There are examples when the same objects in one case are a means of committing a crime, and in another they become an instrument of crime. So, when entering a room for the purpose of theft, a firearm can be used by the perpetrators to break locks (means), and in a murder, the same object is used to take a person’s life (weapon).
Finding accomplices in the crime is the next form of preparation. This type of preparatory activity is a deliberate action, the content of which is the recruitment of accomplices for a future crime, through blackmail, promises of threats, etc. This type of preparatory actions constitutes the stage of preparation when the efforts of the subject achieved success, but the crime was interrupted due to circumstances beyond his control.
Conspiracy to commit a crime is an agreement reached between two or more persons, the content of which is an agreement to commit a crime. A prerequisite is that the parties to this agreement agree to commit a crime in the future.
Another deliberate creation of conditions for the commission of a crime is expressed in a wide variety of actions - this could be drawing up a plan for a future crime, tracking down the victim, studying security posts, etc.
Being an independent form of criminal behavior, preparation includes not only objective, but also subjective signs. From the subjective side, preparation is possible only with direct intent - the perpetrator is aware that by his actions he is creating conditions for the commission of a crime and wants to create them. As many authors rightly note, one cannot prepare for a crime only by allowing it to be committed, and even more so in the presence of negligence.
It should be noted that some preparatory actions may contain signs of a completed crime provided for by the Special Part of the Criminal Law. Such cases include, for example: theft, extortion of weapons or radioactive materials (Article 226 of the Criminal Code of the Russian Federation), with the aim of using them as a weapon or means in committing another crime; forgery or production of documents (Article 327 of the Criminal Code of the Russian Federation) for the purpose of using them in fraud, etc. Under these circumstances, socially dangerous behavior of persons must be assessed taking into account the crime committed and qualified, accordingly, as a set of acts.
The organization of an armed gang (Article 209 of the Criminal Code of the Russian Federation), a criminal community (Article 210 of the Criminal Code of the Russian Federation), recruitment of mercenaries (Article 359 of the Criminal Code of the Russian Federation), etc. are classified as an independent crime. Considering the increased public danger of these acts, the legislator considered it necessary model completed crimes on the basis of these preparatory actions.
The current Criminal Code of the Russian Federation of 1996. established the possibility of criminal legal repression for preparation only for a serious and especially serious crime (Part 2 of Article 30), and punishment for them in accordance with Art. 66 cannot exceed half the maximum term or amount of the most severe type of punishment provided for by the relevant article of the Special Part for a completed crime.
Attempted crime
The next stage at which a crime can be interrupted is an attempt. The current criminal law in Part 3 of Art. 30 of the Criminal Code of the Russian Federation defines attempt as intentional actions (inaction) of a person directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of this person. Almost the only innovation that the legislator has introduced into the definition of an attempt is to take into account the fact that an attempt can also be committed through inaction. An example of this could be leaving a person helpless in the cold, a mother refusing to feed her child, etc. When attempting a crime, there are a number of signs that distinguish it from preparation and thus make it a more dangerous stage in the implementation of the crime.
Firstly, an attempt is already a direct invasion of the object of the crime, a rupture of the legal shell that protects this or that benefit from encroachment. Secondly, an attempt, in contrast to preparation, is already the beginning of the implementation of the objective side of a specific crime provided for by the Special Part of the Criminal Code of the Russian Federation. The incompleteness of the objective side of an attempt is expressed in the vast majority of cases by the non-occurrence of a criminal result, the consequences of committing a crime. In some situations, failure to complete a crime may result in failure to commit a number of actions included in the objective side of the crime.
In terms of its objective and subjective aspects, an attempt is characterized by the following features: firstly, the actions of the perpetrator are directly aimed at committing a crime; secondly, the crime started was not completed; thirdly, the crime was not completed due to circumstances beyond the will of the perpetrator.
The first sign makes it possible to distinguish between preparation and attempted crime, while the second and third distinguish between attempted and completed crime.
When considering an attempt, it is necessary to keep in mind that it is already the execution of a crime, the implementation of a socially dangerous act (actions or inaction), which is a mandatory sign of an objective party, which is directed against the object of the crime.
The incompleteness of the crime during an attempt is interpreted as the absence in the objective side of the crime of the necessary signs provided for by the disposition of a specific criminal law norm of the Special Part of the Criminal Code of the Russian Federation.
First of all, this is the non-occurrence of a criminal result (a missed shot, a glancing blow with a knife, etc.).
Often in the practice of qualifying attempts, there are cases when consequences do occur, but not those that the criminal expected from the committed act. For example, as a result of an attack on life, it was not the death of the victim, but serious harm to health.
The reasons for not completing a crime must be objective. If the perpetrator at the stage of the attempt voluntarily refuses to complete the crime, then this kind of action is subject, if the necessary signs are present, to an independent criminal legal assessment (Article 31 of the Criminal Code of the Russian Federation).
The will of the perpetrator is aimed at committing a crime, bringing it to an end, achieving a criminal result. The reasons that act as a kind of barrier can be the resistance of the victim, the action of mechanisms and forces of nature, the lack of certain skills of the offender, his confusion regarding the various circumstances of the act committed.
From the subjective side, an attempt is only an intentional act, and the intent can only be direct. The offender is aware of the danger of the act being committed, as well as the fact that he has performed or failed to perform the necessary actions that will lead to a criminal result.
The principle of subjective imputation operating in Russian criminal law makes it possible, based on the different content of the intellectual moment of an attempt, to distinguish its two types - unfinished and completed attempt. This need arises due to the fact that awareness of the degree of incompleteness or completion of the crime significantly changes the color of the committed act and can be taken into account by the court when determining the type and amount of punishment.
An unfinished attempt occurs when, at the time of its commission, the perpetrator realizes that he did not complete all the necessary actions that would lead to the criminal result. For example, a criminal entered a protected area for the purpose of stealing, but was detained by a security officer.
A completed attempt is characterized by the fact that the perpetrator, in accordance with his subjective ideas, is aware that he performed the necessary list of actions, but they did not lead to the onset of consequences.
In the science of criminal law, within the framework of the doctrine of the stages of committing an intentional crime, a third type is also considered, the so-called. "unworthy assassination attempt." This type covers cases when the offender is mistaken about the actual properties of an object or the means or instruments of committing a crime.
In accordance with this classification, a distinction is made between an attempt on an unsuitable object and an attempt with unsuitable means. Examples of such types of assassination attempts include cases of shooting or stabbing an already dead person, attempting to fire from an unusable gun, failure to detonate an explosive device, etc.
Both of these types are essentially a type of factual error. In the theory of criminal law, cases of attempt are considered using unsuitable means, chosen due to extreme ignorance or associated with superstition. The essence of this attempt is that a person is trying to cause harm by attracting supernatural forces (spells, magical actions, etc.) or with the help of objects that, due to their natural properties, cannot cause the desired harm. The literature gives an example of an attempted poisoning using dried meat of a poisonous snake. This type of attempt is more similar to the detection of intent and therefore does not entail criminal liability.
Thus, part 3 of Art. 30 of the Criminal Code of the Russian Federation, along with the articles of the Special Part of the Criminal Code of the Russian Federation, acts as a legal basis for bringing to criminal responsibility a person who attempted to commit an intentional crime. Taking into account the incompleteness of the act, the law obliges the courts, when imposing punishment for an attempt, not to go beyond three quarters of the maximum term or the amount of the most severe type of punishment provided for by the sanction of the article of the Special Part of the Criminal Code of the Russian Federation (Part 3 of Article 66 of the Criminal Code of the Russian Federation). The death penalty or life imprisonment cannot be imposed for attempted murder (Part 4 of Article 66 of the Criminal Code of the Russian Federation).
Punishment that entails an unfinished crime
Grounds of liability and limits
According to the provisions of Article 31 of the Code, a person who voluntarily renounces the fulfillment of his criminal intentions cannot be held criminally liable.
However, if the accused voluntarily refuses to carry out his intended plan to the end, he will still be held accountable under the Criminal Code if the act actually committed by him contains a different corpus delicti.
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Article 31 of the Criminal Code of the Russian Federation dated June 13, 1996 N63-FZ
Rules for assigning responsibility
Since the offense did not actually occur and no negative consequences occurred, the person cannot be subject to strict penalties such as life imprisonment and the death penalty.
The measures and amount of liability depend on the circumstances of the incident:
- The punishment for preparing to commit a crime cannot be more than half the maximum term for a similar but completed act.
- Attempt cannot be punished by more than ¾ of the maximum sentence for a full-fledged offence.
Completed crime
The general part of the current Criminal Code of the Russian Federation provides a legislative definition of a completed crime. In Part 1 of Art. 29 of the Criminal Code of the Russian Federation says: “A crime is considered completed if the act committed by a person contains all the elements of a crime provided for by this Code.”
Well-known experts in the field of criminal law at one time proposed a similar concept of a completed crime: “A crime is considered completed when the act committed by the perpetrator contains all the elements of a crime described in the disposition of the criminal law.”
N.D. Durmanov understood a completed crime as an act that contains all the elements of the crime, the commission of which was covered by the intent of the perpetrator.
The question of the existence of a completed crime is decided depending on the design of the relevant corpus delicti described in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation. In this regard, in the science of criminal law, three types of compositions are considered: material, formal, truncated. This issue is studied in more detail in the doctrine of the objective side. Within the framework of the topic under study, we note only the following.
In crimes with a material component, the moment of completion of the crime is associated with the onset of consequences, which are a mandatory sign of the objective side and are subject to establishment and proof. The non-occurrence of consequences indicates that the crime was not completed, and in these cases, along with the article of the Special Part, Art. 30 of the Criminal Code of the Russian Federation. This group includes most crimes against the person, property, malfeasance, etc. For example, a murder is considered completed from the moment the victim dies. If death does not occur, then the act is classified as attempted murder. Theft and robbery are considered completed from the moment of taking possession of someone else's property by secret or open means. In this case, one significant circumstance should be taken into account - sometimes the moment of completion of the crime in each specific case is influenced by a number of factors: the peculiarity of the subject of the crime, the situation in which the crime was committed, etc. The following example is typical: citizen N., while on a bus with the aim of committing theft, put his right hand into citizen K.’s shopping bag and grabbed the available amount of money. At the moment when he pulled out his hand with money from the bag, K. felt it and caught the culprit by the hand. N. was detained and subsequently convicted under Part 3 of Art. 30 and part 2 art. 158 of the Criminal Code of the Russian Federation. As can be seen from what was described, N. began to confiscate property, but the confiscation was not completed, the victim did not lose the opportunity to dispose of her property, although the possibility of loss really existed.
At the level of law enforcement activities, the issue of the end point is decided taking into account the specific circumstances of the case. The general premise is this: in crimes with a material element, the crime is recognized from the moment the consequences specified directly in the law or established by analysis occur.
The next type is the formal corpus delicti, where the moment of completion of the crime is associated with the commission of the act itself. The consequences in such compositions are beyond the scope of the legislative structure of a criminal offense. This type of crime is constructed in the legislation in the following cases: firstly, when the consequences inevitably occur along with the commission of the act and therefore it is virtually impossible to separate them from each other; secondly, when a criminal act entails a variety of criminal consequences that are difficult to establish and specify (for example, disclosure of preliminary investigation data); thirdly, when the object of criminal legal protection is so important that the legislator does not consider it possible to wait for the consequences to occur and associate the end of the crime with this moment. The legislator sometimes resorts to a mixed construction of offenses, constructing the main offense as a crime with a formal offense, and a qualified offense with a material offense.
In the theory of criminal law, it is debatable whether an attempt to commit a crime is possible with a formal structure of the crime.
This situation is in principle possible. For example, a person, with the aim of slandering another person, copies slanderous fabrications on a photocopier and then sends them by mail to specific recipients. However, for reasons beyond his control, the letters do not reach their recipients. There is an attempt at libel (Part 3 of Article 30 and the corresponding part of Article 1281 of the Criminal Code of the Russian Federation).
And finally, the third type of crime is a construction in which the moment of completion of the crime is associated with preparatory actions or an attempt. As a rule, the legislator turns to such a construction in the case when the object of the crime represents the most significant relationship for society and the state, or the act itself and its perpetrator pose an increased public danger. The term “truncated composition” itself is very conditional and is criticized by many legal scholars1.
Crimes with truncated elements are a type of formal crimes and belong to the torts of danger. This type of crime has a number of features.
Firstly, crimes with a truncated composition are committed only with direct intent in the presence of a special purpose (robbery with the aim of taking possession of someone else's property, etc.).
Secondly, in the type of crime under consideration, the moment of completion is transferred to the stage of attempt or even preparation (for example, an attempt on the life of a law enforcement officer, etc.).
The legislator, modeling compositions with the end point at an earlier stage, is very cautious in punishing the perpetrators. For example, many norms with a truncated composition retain the possibility of exemption from criminal liability for active repentance.
The practice of modeling criminal law prohibitions with formal and truncated provisions is widely used in the legislation of other countries. As a rule, these are crimes against state security, public order, and international crimes.
