The effect of criminal law in time and space

The effect of criminal law over time

The criminality and punishability of an act are determined by the criminal law in force at the time the crime was committed. A criminal law that has entered into force in accordance with the established procedure is valid, unless its validity period has expired or it has not been repealed or amended by another law.
The procedure for the entry into force of the law is determined by the Federal Law of July 14, 1994 “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 it, federal laws:

• are subject to official publication within 7 days after the day of their signing by the President of the Russian Federation in the “Parliamentary Gazette”, “Rossiyskaya Gazeta” or “Collection of Legislation of the Russian Federation”;
• come into force 10 days after the day of their official publication, unless the laws themselves or acts of the chambers establish a different procedure for their entry into force.

The criminal law ceases to apply as a result of:

• its cancellation;
• replacement by another law;
• expiration of the period specified in the law itself;
• changes in the conditions and circumstances that led to the adoption of this law;
• declared unconstitutional by the Constitutional Court of the Russian Federation.

Features of the operation of criminal law over time:

1. if a new law entails increased liability, then the old, repealed law is applied to all legal relations that arose before its publication;
2. a criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of the person who committed the crime, has retroactive effect, i.e. applies to persons who committed the relevant act before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record;
3. a criminal law establishing the criminality of an act, increasing punishment or otherwise worsening a person’s position does not have retroactive effect.

The Criminal Code of the Russian Federation states: “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” (Part 2 of Article 9 of the Criminal Code). The legal basis for such a decision is that the subjective attitude of the perpetrator to his actions is connected with the law that existed at the time the action (inaction) was committed.

Recognizing the time of commission of a crime as the time of commission of actions excludes the prosecution of a person who committed actions during a period when they were not recognized as criminal, if the consequences occurred after the entry into force of a new law that criminalized this act. Accordingly, the qualification of the actions of the perpetrator under the new law, which provides for a more severe punishment, is excluded if the actions were committed before the adoption of the new law.

Example

Thus, if a wound for the purpose of murder out of jealousy was inflicted in December 1996, and death occurred in January 1997, then the time of commission of the crime should be considered December 1996 and the actions of the perpetrator should be qualified under Art. 103 of the Criminal Code of the RSFSR (punishment: imprisonment from 3 to 10 years), and not under Part 1 of Art. 105 of the Criminal Code of the Russian Federation (punishment: imprisonment from 6 to 15 years).

The provision that the time of commission of a crime is the time of commission of an action is universal. Not all elements of a crime include the occurrence of consequences as a mandatory feature. A similar feature is absent in formal offenses, the objective side of which consists only in the commission of actions or inaction (for example, Article 125 of the Criminal Code - leaving in danger), in truncated offenses, the moment of the end of the crime in which is moved to an earlier stage than the onset of consequences (for example, Article 162 of the Criminal Code - robbery). Meanwhile, no crime is possible without the commission of certain actions or without the fact of inaction.

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:

1. A crime is considered completed if the act committed by a person contains all the elements of a crime provided for by this Code.
2. Preparation for a crime and attempted crime are recognized as unfinished crimes.
3. 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.

The concept of time of crime

The time of commission of a crime as a certain time period is quite rarely mentioned in the current Criminal Code as a mandatory sign of the objective party. So, in Art. 106 of the Criminal Code provides for liability for the murder of a newborn child by a mother during childbirth or immediately after childbirth. In Art. 331 of the Criminal Code, which defines the concept of a crime against military service, refers to these crimes committed in wartime (Part 3). Responsibility for violent actions against a superior occurs when such actions are committed during the performance of military service duties (Article 334 of the Criminal Code).

In some cases, time acts as a qualifying feature. Thus, the punishment for unauthorized leaving a unit or place of service is more severe depending on the period of absence (Parts 3 and 4 of Article 337 of the Criminal Code).

As an optional feature of the objective side of a crime, the time of commission of a socially dangerous act can influence the degree of danger of the attack, and then it is taken into account when individualizing punishment.

Thus, to qualify the theft, it does not matter at what time it was committed. However, committing hooligan acts during mass events increases the degree of danger of hooliganism and should be taken into account when individualizing punishment.

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.

The action of criminal law in space

When resolving issues related to the operation of criminal law in space, it should be borne in mind that the place of commission of a crime, as a general rule, is recognized as the place where a socially dangerous action was committed, regardless of the place where the consequences occurred .

This means that the territory of Russia will be the place where a crime was committed if at least one of the system of volitional physical acts that form an action as a sign of the objective side of the crime is committed on the territory of Russia, determined in accordance with Parts 1 - 3 of Art. 11 of the Criminal Code.

In addition to this general rule, Russia will be the place where the crime was committed:

• if the consequences occurred on the territory of Russia, but the socially dangerous action itself was committed in another place;
• in a crime with two mandatory actions, if at least one of the actions constituting the crime was committed on the territory of Russia;
• if, in the course of committing a continuing or ongoing crime, a person ends up on the territory of Russia and the act he commits is provided for by the current criminal legislation of Russia;
• in complicity, if the perpetrator committed the act or the accomplices committed their actions on the territory of Russia.

If the territory of the Russian Federation is recognized as the place where the crime was committed, the basic principle of the operation of criminal law in space is subject to application - the territorial principle formulated in Part 1 of Art. 11 of the Criminal Code. In accordance with this principle, the criminal jurisdiction of the Russian Federation on its territory is unconditional, i.e. Any person, regardless of his citizenship, who has committed a crime provided for by Russian criminal law on the territory of Russia is subject to criminal liability under Russian criminal law.

The territory of the Russian Federation is established by its state border. Criminal jurisdiction is also exercised over persons who have committed crimes on the continental shelf and in the 200-mile exclusive economic zone.

Naval ships and military aircraft have extraterritoriality. Regardless of their location, crimes committed on these vessels are subject to Russian criminal law.

On civil ships and aircraft, the criminal law of the Russian Federation applies only if they are located on the territory of Russia, as well as in international airspace or international waters.

is established in criminal law . Members of the diplomatic staff (ambassadors, envoys, advisers, attachés, etc.) enjoy personal immunity and immunity from criminal jurisdiction.

In accordance with Part 4 of Art. 11 of the Criminal Code, the issue of criminal liability of diplomatic representatives of foreign states and other citizens who enjoy immunity if these persons commit a crime on the territory of Russia is resolved in accordance with the norms of international law.

According to the Vienna Convention on Diplomatic Relations of April 18, 1961 and the Vienna Convention on Consular Relations of April 24, 1963, as well as according to other international legal acts defining the status of international organizations and their employees, and bilateral international agreements, persons enjoying immunity in accordance with these documents, have absolute immunity from the criminal jurisdiction of Russia; They can be brought to criminal liability under Russian criminal law only if the express consent of the state of which these persons are citizens is given.

If a crime is committed outside Russia (Article 12 of the Criminal Code of the Russian Federation), a person can nevertheless be brought to criminal liability under Russian law on the basis of additional three principles of the operation of criminal law in space:

1) the principle of citizenship;

Conditions for applying the principle of citizenship:

• citizenship of the person who committed the crime;
• the fact that such persons committed a crime outside the territory of Russia against the interests protected by the criminal legislation of Russia, i.e. any crime provided for by the Criminal Code;
• the absence of a foreign court decision regarding these persons regarding this crime, i.e. a final decision on either conviction or acquittal that has entered into legal force (the application of Russian criminal law is equally hampered by both the decision to convict these persons and the decision to acquit them).

The Criminal Code of the Russian Federation also covers crimes committed by Russian military personnel of military units stationed outside Russia.
2) real principle;

Conditions for applying the real principle:

• the citizenship of the person who committed the crime (based on the real principle, only foreign citizens and stateless persons who do not permanently reside in Russia may be subject to criminal liability);
• whether the act they committed was covered by Russian criminal law;
• the fact that such persons committed a crime outside the territory of Russia against the interests of Russia, a citizen of Russia or a stateless person permanently residing in Russia, i.e. any crime provided for by the Criminal Code;
• absence of the fact of conviction of such persons in a foreign state, i.e. the final decision on conviction that has entered into legal force (at the same time, the prosecution of these persons under Russian law in accordance with Part 1 of Article 50 of the Constitution of the Russian Federation is prevented not only by their conviction in a foreign state, but also by acquittal).

3) universal principle.

Conditions for applying the universal principle:

• the citizenship of the person who committed the crime (on the basis of the universal principle, only foreign citizens and stateless persons who do not permanently reside in Russia may be subject to criminal liability);
• whether the act they committed was covered by Russian criminal law;
• the fact that such persons have committed a crime outside the territory of Russia, which Russia can prosecute in accordance with international treaties to which it is a party, or another document of an international nature containing obligations recognized by the Russian Federation in the field of criminal law, applying national criminal legislation and regardless of whether , against the interests of which state such a crime is directed;
• absence of the fact of conviction of such persons in a foreign state, i.e. the final decision on conviction that has entered into legal force (at the same time, the prosecution of these persons under Russian law in accordance with Part 1 of Article 50 of the Constitution of the Russian Federation is prevented not only by their conviction in a foreign state, but also by acquittal).

Extradition (extradition) of persons who have committed a crime is the transfer of a criminal to another state for trial or enforcement of a sentence, carried out in accordance with international treaties and national criminal and criminal procedural legislation. It is possible only in the case of a crime, and not any other offense. The conditions and procedure for issuance are regulated by national (domestic) legislation and international treaties. A citizen of the Russian Federation cannot be extradited to another state.

An exception to international treaties on extradition is the right of asylum. Russia does not allow the extradition to other states of persons persecuted for their political beliefs.