GOOD
As can be seen from the previous part of the article, the examples of “insignificance” described there can be attributed, so to speak, to examples where the degree of public danger of a criminal attack is, so to speak, qualitative in nature.
And now I propose to go back again and take another look at the border between “dangerous non-criminal punishable behavior” and “dangerous criminal punishable behavior”, from the point of view of “quantitative” characteristics of insignificance.
Legal professionals are well aware that there is a so-called “paired” articles of the Code of Administrative Offenses and the Criminal Code of the Russian Federation, for example, Part 1 of Art. 213 of the Criminal Code of the Russian Federation (“Hooliganism”) and Art. 20.1 KRFobAP (“Petty hooliganism”); Part 1 Art. 158 of the Criminal Code of the Russian Federation (“Theft”) and Art. 7.27 KRFOBAP (“Petty theft”), elements of crimes and offenses “Illegal entrepreneurship”, etc.
I will illustrate my arguments with references to these articles on theft.
It is clearly visible that the boundary between “punishable criminal” theft, entailing criminal liability under Part 1 of Art. 158 of the Criminal Code of the Russian Federation, and “punishable non-criminal” petty theft is strictly and only in the amount of the stolen goods: petty theft in the amount of up to 1,000 rubles is an administrative offense; exactly the same theft for a large amount is a crime.
Consider the relationship between the following situations:
- money worth 1,100 rubles was secretly stolen from a citizen;
- money worth 1,001 rubles was secretly stolen from a citizen;
- money in the amount of 999 rubles was secretly stolen from a citizen.
It is obvious that examples 1) and 2) are examples of crimes, that is, such acts that fully contain the elements of a criminal and punishable act.
It is also obvious that example 3) is an example of an administrative offense, that is, an act that completely contains the elements of an unlawful and punishable act.
Now, under the circumstances described, is the act described in example 2) insignificant?
This is a really difficult question.
On the one hand, we are dealing with an act that contains the full elements of a crime (and therefore is a crime).
On the other hand, such an act differs practically immeasurably little from an act punishable in administrative proceedings; but at the same time, the act under investigation is not an administrative offense (since there is no APT - after all, the amount of theft has been exceeded).
This is precisely why the doctrine is now developing two positions in general in relation to the content of the concept of insignificance.
The first position includes real cases of actions that either do not create any liability (in which there is no public danger in principle), or form civil, disciplinary or administrative liability (that is, there is a public danger, but does not reach the level of criminal liability). Within the framework of this position, any act can be considered insignificant.
The second position includes real cases of committing actions for which both administrative and criminal liability may be provided (for example, theft and petty theft), or such acts for which only criminal liability is provided (no gap in the form of administrative no liability established). Within the framework of this position, any act can be considered insignificant, except in cases where administrative liability is established for the same actions.
Within the framework of the current doctrine of criminal law, the second position is GREATLY widespread, according to which only such an act can be insignificant if it has the elements of a criminal offense for which there is no administrative liability.
DISCUSSION: I am undecided in my opinion regarding these two doctrines; I can give pros and cons for each. Therefore, I raise this issue for discussion.
Let's return to the quantitative criteria for determining the social danger of an act; in my opinion, this is a determination of the DEGREE of social danger of an act through its SUBJECT in quantitative terms.
I’ll give a simple example (my disclaimer regarding simple examples was higher 
):
Art. 222 of the Criminal Code of the Russian Federation establishes criminal liability for illegal possession of AMMUNITION. I specifically draw attention to the fact that the construction of the article (the corpus delicti) clearly includes an objective act in the form of storing not a unit, but a quantity of (SEVERAL) ammunition. Based on the literal interpretation, possession of ONE ammunition does not constitute a crime.
Moreover, the storage of one ammunition, according to the courts, is an act that does not create a threat to public relations (that is, in fact, it is insignificant).
The Review of Judicial Practice of the RF Armed Forces for the first quarter of 2011 provides an example:
“Having found Z. guilty of the illegal acquisition and storage of ammunition - a single 7.62 mm caliber cartridge, the court did not assess the fact that Z. did not have any weapons, acquired (found) the cartridge by accident and did not attach any significance to its location (storage) in your apartment.
In addition, the court in its verdict did not provide data indicating that Z., through his actions, caused harm or created a threat of harm to an individual, society or the state.
Under such circumstances, the Judicial Collegium overturned the court verdict and dismissed the case on the basis of clause 2, part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation for the absence of corpus delicti in the act and recognized Z.’s right to rehabilitation.”
However, the very concept of ammunition is ambiguous.
On the one hand, ammunition is (as in the above example) a cartridge (that is, a combination of a projectile (bullet), a propellant charge (gunpowder), an initiating charge (capsule), and a device for connecting them (case)), the illegality of storage of which is determined by law “ About weapons,” but the possibility of practical use in practice for criminal purposes is limited by the absence of a corresponding lack of weapons (equipped with these ammunition).
On the other hand, the stored ammunition is, for example, the RGO hand grenade, which can be used - in accordance with the purpose of this ammunition - independently.
On the third hand, formally stored ammunition is, for example, a VOG-25 shot, intended for shooting from a GP-25 grenade launcher: its independent use (without modifications) is simply impossible, but in the “weapons + ammunition” system it becomes very dangerous. For the same device there are also, for example, shots like “Nail” or GDM-40.
Fourthly, for example, the AN602 device, which literally “shook the whole Earth,” was also, formally, “just” ammunition. And would the act of storing such a single ammunition be insignificant?
Judicial practice regarding the storage of a single ammunition - a cartridge for small arms - has been developed and is very stable: courts apply such criteria for the insignificance of an act as the absence of significant harm or the threat of causing such harm:
The Supreme Court of the Russian Federation in the Cassation ruling of February 28, 2005 N 76-004-12 indicated: “...at the same time, the judicial panel cannot recognize Knyazev’s conviction under Art. 222 of the Criminal Code of the Russian Federation, for the following reasons.
When deciding whether to bring a person to criminal liability, it should be borne in mind that, within the meaning of the law, an act that formally falls under the signs of a particular type of crime must represent a sufficient degree of public danger.
If the act does not entail significant harm to an object protected by criminal law, or the threat of causing such harm, it, due to its insignificance, does not pose a great public danger and therefore is not considered a crime.
A criminal case regarding such an act cannot be initiated, and the case initiated is subject to termination due to the absence of corpus delicti in the act on the basis of clause 2 of Part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation.
In this case, the court indisputably established that only 1 cartridge of 7.62 mm caliber was found and confiscated from Knyazev, which he illegally transported, stored and carried in his pocket, he also kept gunpowder, which is an explosive substance, in his home in an amount of only 7 .85 g.
These actions of Knyazev contain signs of a crime providing for liability under Art. 222 of the Criminal Code of the Russian Federation.
However, according to Part 2 of Art. 14 of the Criminal Code of the Russian Federation, an action (inaction) is not a crime, although formally it contains signs of any act provided for by the Special Part of the Criminal Code of the Russian Federation, but due to its insignificance it does not pose a public danger, therefore these actions of Knyazev should be considered insignificant and the sentence in terms of convicting him under Art. 222 of the Criminal Code of the Russian Federation should be repealed with the termination of proceedings due to the absence of corpus delicti in the act on the basis of paragraph 2 of Part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation.”
With this approach, possession of more than one small arms ammunition, as well as a single ammunition with other damaging properties, can be punishable. But - with the peculiarities of the properties of such a defeat: if the above VOG-25 is a fragmentation grenade, then the GDM only creates a smoke screen. That is, both are ammunition, but one is lethal, and the other is not. Consequently, the degree of criminal danger of their storage varies. This means that, depending on the various properties of the subject of the crime, the question of the insignificance of the act can be considered differently.
CONCLUSION : to assess an act as insignificant, the properties of the object in relation to which the attack occurs may be important.
DISCUSSION : Here I propose to return once again to that part of the article where the correlation of insignificance with the corpus delicti is given. Since an insignificant act contains the full elements of a crime, then, therefore, in the criminal procedural sense, insignificance does not mean the absence of corpus delicti in the act, quite the contrary. And the act itself is also completely present. And there is also proof of the commission of a specific minor act by a specific person.
In the Code of Criminal Procedure of the Russian Federation there is no special procedural basis for stopping prosecution due to the insignificance of the act! None of the rehabilitating grounds qualify as insignificant (I won’t even talk about non-rehabilitating ones). However, as can be seen from the above definition, the Supreme Court of the Russian Federation believes that in case of insignificance, it is the composition that is missing, which clearly contradicts the very definition of insignificance. This is another problem for the application of the institution of insignificance in practice (or rather, the application of the Law by practitioners) - and on what basis should one stop (refuse), ???
EAT
What do we have in the end? We have the following conclusions:
From the point of view of the theory of tort law, the institution of insignificance is formulated in such a simple form that in practice its criteria are completely unclear.
We have:
- Any act can be considered insignificant, but:
- there are acts that, due to the significance of the protected social relations, cannot in any way be insignificant; but there are no criteria for classifying social relations as particularly significant;
- Any act can be considered insignificant, but:
- if for similar legal relations not only criminal, but also administrative liability is established, then such an act will always be punishable - not criminally, but administratively;
- Any act can be considered insignificant, but:
- if a severe punishment is established for an act, then this indicates the absence of insignificance;
- at the same time, even if the committed act is a serious crime, it can still be minor;
- An act may be considered insignificant if the subject of the crime itself is of little danger. Or the same act cannot be considered insignificant
We also have that such circumstances as the identity of the person who committed the act, his characteristics, the presence or absence of criminal experience, making amends for the harm caused, compensation for damage, providing assistance and any other facts of positive behavior not directly related to the act itself, have no influence on the decision on recognition of the act as insignificant; since they relate to the subjective side of the act (that is, to its composition), and not to the social danger of the act.
Everything about criminal cases
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Minority of the crime
| Normative base — Part 2 14 Criminal Code if the act is not dangerous, then it is not a crime - paragraph 33 Plenum No. 48 if the fraud is insignificant, the case is terminated — clause 12 Plenum No. 26 insignificance under articles Plenum No. 11 insignificance of actions under Article Plenum No. 5 arms trafficking may be considered insignificant - paragraph 18 Plenum No. 19 requires a significant violation of rights under — clause 18 Plenum No. 18 possibility of termination due to insignificance under Plenum No. 43 termination due to insignificance under In criminal law there is no separate mechanism for dismissing a case on grounds of insignificance. — the very possibility of termination of the case is based on just one norm: Part 2 14 of the Criminal Code . — the concept of “insignificant” is evaluative; the actual interpretation must be made each time by the court, depending on the circumstances of a particular criminal case, while there are no clear criteria for what is considered “insignificant.” There are small clarifications of this issue in a number of Resolutions of the Plenums of the Supreme Court. (note: in fact, in this example we again see the decisive role of the Plenums in the system of real practice - mainly in these cases, the ones mentioned by the Plenums are of little significance and are applied). - difficulty in real application of the norm, part 2 14 of the Criminal Code lies in the “nebulosity” (unclearness) of the formulations. Administrative Articles Advice: study the administrative structures - that is, the “younger relatives” of the criminal article under which you are charged. - example: Article Part 1 158 of the Criminal Code there is a “younger sister”, administrative article EXAMPLE (case No. 44у-30/2019) Example - reversal of the sentence under Article Actions of the culprit - also a sign of insignificance can be the actions of the culprit that reduce the public danger: the quick return of the stolen property, making amends for the harm. |
Procedural aspects of termination of a case due to insignificance
| Insignificance is a rehabilitative basis The important thing is that if the case is terminated due to insignificance, then it is terminated for rehabilitative reasons. basis. - namely, according to clause 2, part 1 of 24 Code of Criminal Procedure (dismissal of the case for lack of corpus delicti); — and this gives the right to rehabilitation ( clause 3, part 2, 133 Code of Criminal Procedure ). |
ILLUSTRATIONS from judicial practice
- 115 of the Criminal Code - minor harm to health, hair pulling, pushing and subsequent falling of the victim into a flowerbed (Resolution of the Presidium of the Supreme Court of the Republic of Sakha (Yakutia) in case No. 44u-69/2015).
- 158 of the Criminal Code - theft from a store of men's underpants. (Resolution of the Presidium of the Supreme Court of the Republic of Tatarstan No. 44U-284/2017). There are quite a few examples of theft - theft of pasta and several bottles of beer, theft of scrap metal, theft of perfume - the main thing is that the cost is slightly higher than 1000 rubles.
— 159.2 of the Criminal Code — fraud with social benefits. She provided a false income certificate to obtain the right to free meals for her daughter in the school canteen. Damage to the budget in the amount of 10,066 rubles. (Cassation ruling of the Supreme Court dated August 20, 2020 No. 15-UDP20-7-K1).
- 327 of the Criminal Code - use of forged documents: the woman used a fake medical report (although she had the same real one) in order to speed up the formal procedure for guardianship of a sick child. (Resolution of the Presidium of the Nizhny Novgorod Regional Court No. 44U-125/2018).
— 139 of the Criminal Code – violation of the inviolability of the home; the neighbor came in without asking from the open door of the apartment and took just one step inside (Resolution of the Presidium of the Stavropol Regional Court dated 09/05/2018 in case No. 44U-234/2018).
— 159.2 of the Criminal Code – fraud in receiving payments; the pensioner did not inform the Pension Fund that the grounds for the increased pension had disappeared and received payments, but then returned everything (Resolution of the Presidium of the Stavropol Regional Court dated November 28, 2013 in case No. 44у-747/2013).
- 222 of the Criminal Code (storage of weapons) - two old 9-mm cartridges, which the accused found by chance and, not having weapons, kept in the apartment without attaching any significance to it. (“Bulletin of judicial practice in criminal cases of the Sverdlovsk Regional Court (third quarter of 2017 (53))”
— 214 Criminal Code – vandalism; a minor drew “graffiti” with a marker in the train vestibule. (Resolution of the Presidium of the Moscow Regional Court dated March 11, 2015 No. 124 in case No. 44у-58/2015)
These are not isolated cases and many examples can be given.
Basically, cases are dismissed for crimes of minor and medium gravity. Which is quite understandable.
Minority under serious articles 105 of the Criminal Code (murder), 111 of the Criminal Code (grievous bodily harm), 131 of the Criminal Code (rape) is completely inapplicable. Which is also quite understandable.
What about 228, 228.1 CC
?
After all, it’s not uncommon for a student to be imprisoned for a handful of hemp leaves picked up in the garden. What about 228 and 228.1 of the Criminal Code:
Nothing good. Let us give a typical example of the court's motivation when the defense tries to refer to insignificance due to the size of the substance and the circumstances.
Example: Neither the type, nor the size of a narcotic drug, nor the fact of its seizure by police officers are defining features that reduce the public danger of an act related to the illicit trafficking of narcotic drugs and psychotropic substances, and cannot be regarded as formal signs of a crime. The crime is serious and affects the health of society. Such a crime cannot have any signs of insignificance. (Resolution of the Moscow City Court dated February 19, 2019 N 4у-0806/2019).
Thus, according to 228 and 228.1 of the Criminal Code, insignificance does not work. Almost.
Sometimes, the nature and volume of the substance can act as a mitigating circumstance (you can read more about this here: Volume of the drug
the drug may be a mitigating factor,
the nature of the drug
may be a mitigating factor).
In addition, you can find rare examples from related articles.
Example: 229 of the Criminal Code (drug smuggling): the convicted person, at the request of his mother, brought from abroad medicine containing a narcotic substance. (Resolution of the Presidium of the Bryansk Regional Court dated June 13, 2018 N 44U-52/2018).
That is, there are some glimmers of sympathy for life situations among the courts. But rarely.
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LIVE!
How to use the imperfect wording of the law, the restrictions inherent in them, contradictory judicial interpretations, and the lack of knowledge of all this by law enforcement officers?
We must use all this only and exclusively for the benefit of our clients, for example, by trying to convince law enforcement officers of the insignificance of the act they are investigating, giving reasons for this (referring to arguments) that are suitable for the situation (and keeping silent about the opposite).
For example: a classmate contacted me, whose son was accused of plundering the Russian budget so much that Chubais began to miss it.
While working on the case, it turned out that during his military service the young man was awarded the rank of “junior sergeant.” Later, he signed a contract for military service, which he continued in the rank assigned to him. And about a year later it turned out that there was no right to confer such a rank at the place of military service. And the best way out of this situation seemed to be to bring the young fighter to criminal responsibility for theft.
After fulfilling the requirements of Art. 217 of the Code of Criminal Procedure of the Russian Federation, I filed a petition to terminate the criminal case due to insignificance; To substantiate the petition, I lumped everything into a pile: both qualitative and quantitative characteristics of both the act and the subject, and even went through the personality of the person involved. The result is in the application.
The RF Armed Forces changes judicial practice in weapons cases
Photo: supcourt.ru On June 11, the Plenum of the Supreme Court of the Russian Federation amended its resolution “On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices.”
A number of provisions of the previous resolution, adopted in 2002, are set out in a new wording, others are supplemented with new clarifications. Thus, it is established that they do not relate to weapons, the responsibility for actions with which is provided for in Art. 222, 223, 224 and 226.1 of the Criminal Code of the Russian Federation, pneumatic weapons, signal, starting pistols and revolvers, electroshock devices or, for example, sports equipment that is structurally similar to weapons. Light-sound, traumatic, gas-fired cartridges, signal cartridges, construction and installation cartridges, bleached cartridges and other cartridges that do not have a striking element: projectile, bullet, shot, buckshot are not considered ammunition.
Melee weapons, as indicated by the plenum of the RF Armed Forces, are industrially or home-made objects intended to hit a target using human muscle power in direct contact with the target. This can be bladed weapons (daggers, sabers, checkers, swords), weapons of cutting, piercing, chopping or mixed action (bayonets, spears, battle axes, etc.), as well as weapons of impact-crushing action, which include brass knuckles, nunchucks, flails, etc.
The main feature of a gas weapon is its purpose for temporary chemical destruction of a target, which can be a person or animal, through the use of tear or irritant substances.
The document explains what is meant by the illegal carrying, storage of weapons, their illegal transportation or acquisition.
As the Armed Forces of the Russian Federation points out, the voluntary surrender of firearms does not mean the absence of corpus delicti in the act, therefore the termination of the criminal case does not entail the rehabilitation of the person who surrendered the weapon. Its removal during the arrest of a person, as well as during investigative actions to detect and confiscate it, cannot be recognized as voluntary surrender of weapons. At the same time, the voluntary surrender by a person of his own free will of weapons not seized during arrest or during investigative actions, as well as notification to the authorities of its location if they were not aware of it, must be recognized as voluntary.
It is established that weapons and ammunition seized and attached to a criminal case, including confiscated ones, are subject to transfer to the territorial bodies of the Russian Guard or the Ministry of Internal Affairs.
