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125Серебренникова Анна Валерьевна
доктор юридических наук, профессор кафедры уголовного права и криминологии Московского Государственного Университета им. М.В.Ломоносова
Лебедев Максим Владимирович аналитик кафедры национальной безопасности Российского Государственного Университета нефти и газа им. И.М. Губкина
Р01: 10.24411/2520-6990-2020-12104 ОСОБЕННОСТИ УГОЛОВНОЙ ОТВЕТСТВЕННОСТИ НЕСОВЕРШЕННОЛЕТНИХ ПО УГОЛОВНОМУ ЗАКОНОДАТЕЛЬСТВУ РОССИЙСКОЙ ФЕДЕРАЦИИ
Anna V. Serebrennikova
Doctor of law, Professor of criminal law and criminology Moscow Lomonosov State University Maksim V. Lebedev National Security Department Analyst Russian State University of Oil and Gas named I.M. Gubkina
FEATURES OF THE CRIMINAL LIABILITY OF MINORS UNDER THE CRIMINAL LAW OF THE
RUSSIAN FEDERATION
Аннотация:
Цель: Проанализировать отраженные в доктрине дискуссионные вопросы касающиеся преступности несовершеннолетних, особенностей уголовной ответственности и назначения наказаний за совершаемые ими преступления. Рассмотреть вопрос гуманности уголовных наказаний в отношении несовершеннолетних, их исправления уголовно-правовыми методами.
Методология: Для целей настоящей статьи авторами были применены наряду с общенаучными методами: анализа, синтеза, индукции, дедукции, так же частно-научный диалектический методы.
Выводы: Авторы делают выводы о том, что на современном этапе существуют проблемы, связанные с тем, что при рассмотрении дел в отношении несовершеннолетних суды располагают неполными и недостоверными данными содержащимися в материалах уголовных дел, характеризующих личность несовершеннолетнего. Отдельно рассмотрен вопрос гуманизации.
Abstract:
Goal: To analyze the debate issues reflected in the doctrine regarding juvenile delinquency, specifics of criminal liability and sentencing for crimes committed by them. Consider the humanity of criminal penalties for minors, their correction by criminal law methods.
Methodology: For the purposes of this article, the authors applied along with general scientific methods: analysis, synthesis, induction, deduction, as well as private-scientific dialectical methods.
Conclusions: The authors conclude that at the present stage there are problems associated with the fact that when considering cases involving minors, the courts have incomplete and inaccurate data contained in the materials of criminal cases characterizing the identity of the minor. Separately considered the issue of humanization.
Ключевые слова: Уголовный Кодекс РФ, преступление, наказание, уголовная ответственность, несовершеннолетние, квалификация, судебная практика, гуманизация.
Keywords: Criminal Code of the Russian Federation, crime, punishment, criminal liability, minors, qualifications, judicial practice, humanization.
Juvenile delinquency in Russia today is perhaps one of the most acutely debated and discussed in the media. Politicians and businessmen, educators and scientists, public figures and correspondents are actively discussing the growing level of crime and at the same time overly harsh sanctions against juvenile offenders. Federal channels are discussing the problem of highprofile and notable criminal cases with the involvement of experts in the field of criminal law, where the problems of qualification, humanization, juvenile justice and incompetence of judges in the qualification of crimes committed by juveniles are discussed.
According to the data provided by the Main Directorate of Legal Statistics and Information Technology, in 2019, 41,548 crimes were committed by minors in the Russian Federation, which is 4.6% lower than the
indicators of the previous period (2019) [5]. At the same time, the share of this category of crimes in relation to the number of crimes previously solved is 3.9%. It should be noted that more than 1600 episodes of involvement of minors in the commission of crimes or criminal antisocial actions were registered for certain types of crimes. Among the persons who committed crimes of varying severity, 37,953 minors were identified and prosecuted, which is 7.1% less than in the previous period (2019) [3]
Article 87 of the Criminal Code of the Russian Federation provides for criminal liability in relation to minors. In the criminal law, "minors" are such persons "who at the time of the crime were fourteen years old, but not eighteen years old" [6]. A crime committed by such persons entails an obligatory reaction of the state,
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which consists in the application of punishment with the aim of correcting the juvenile offender and preventing him from committing new crimes.
Part 2 of Art. 87 of the Criminal Code of the Russian Federation provides for the application of educational measures or "measures of educational influence" to minors who have committed an offence. [6]
Article 88 of the Criminal Code of the Russian Federation contains an exhaustive list of punishments that can be applied to minors for crimes they have committed. The criminal law provides for several types of punishments that allow individualizing the sanction in strict accordance with the severity of the act committed, among which are: a fine; deprivation of the right to engage in certain activities; compulsory work; correctional labor; restriction of freedom; deprivation of freedom for a specified period. It should be noted that the legislator does not provide for the application of such types of punishments as restriction of freedom, forced labor, arrest and life imprisonment against juvenile prisoners, due to the special social and legal status of minors, as well as the loyal approach to the category of minors by the state.
Today, the doctrine of criminal law distinguishes a number of features in the approach to the appointment and actual execution of punishment in relation to minors. So, analyzing the criminal law, N.A. Selezneva comes to the conclusion that among the "six types of punishment provided for by the Criminal Code of the Russian Federation for minors, they can actually be assigned four, of which a fine, deprivation of the right to engage in certain activities and correctional labor are applicable only to those minors who have a job; from which it follows that the only punishment that can be applied to minors is deprivation of freedom [4].
Article 89 of the Criminal Code of the Russian Federation establishes the features of legislative regulation of the imposition of punishment in relation to a juvenile offender. Within the meaning of Part 1 of Art. 89 of the Criminal Code of the Russian Federation, when imposing punishment against a minor, with the exception of Article 60 of the Criminal Code of the Russian Federation, "the conditions of his life and upbringing, the level of mental development, other personality traits, as well as the influence of older persons on him" [6].
At the same time, the materials not only of criminal cases, but also the materials in the Committee for the Affairs of Minors and Protection of Their Rights do not contain information that allows to reliably represent the real situation of the minor, reflect the real conditions of life and education of the minor.
The work of legal researchers in the field of criminal law is noteworthy, as well as the results of specific studies presented by them, which confirm our theses and show gaps in current legislation and law enforcement. Let us cite only some of the research results. Thus, as a result of the analysis of 87 criminal cases involving 100 convicted persons in various categories of juvenile crime, the authors come to the conclusion that "...according to the results of the research, in the sentences the judges referred to the consideration of the living conditions and upbringing of the minor only in
respect of 32% of persons, ... In 14% of cases ...in the sentences there were no data describing the living conditions and upbringing of convicted minors. In 9 % of cases, the court took into account specific circumstances characterizing the convicted minor's family and living conditions: the existence of siblings, the minor's relations with his or her parents (conflict/non-conflict), and the abuse of the parents' alcoholic beverages... In 3 per cent of cases involving minors, the court cited the following reference: "... is not engaged in the upbringing of a son/daughter" [2].
Among the gaps in the current legislation, it should be noted that at the moment there is no set of parameters characterizing the standard of living of a minor. The authors of this study conclude that "when sentencing minors by judges, it is not sufficiently implemented in practice to take into account any of the circumstances set out in Article 89 of the Criminal Code of the Russian Federation and constituting the peculiarities of sentencing minors". [2].
The social instability and social vulnerability of citizens, the crisis state of the economy, haphazard reforms in health care, social welfare, science, culture, higher education, and a number of other areas have a particular impact on juvenile crime. In turn, the growth in juvenile delinquency has increased by a factor of 67 in relation to the total population of the Russian Federation. [8, c.212].
However, no one is prepared to exempt minors from criminal liability for grave or particularly grave crimes committed. Often, the court refers to the minor's age when imposing the penalty and to the fact that the act does not in fact pose a high risk to society, and the purpose of correction in this particular case may be achieved without assigning a real period of deprivation of liberty to the minor.
"It is indisputable that it would be blasphemy to treat a minor humanely, even if he is a minor, for robberies, gangsterism, sexual perversion, serious harm to health, murder for the purpose of taking money for a bottle of vodka, or for the purchase of drugs and other serious or particularly serious crimes" [7].
Part 2 of Article 89 of the Criminal Code of the Russian Federation provides that the age of a minor is considered as a mitigating factor "in conjunction with other mitigating and aggravating factors" [6]. Within the meaning of the Article, it follows that the age of a minor does not in all cases act as a mandatory mitigating circumstance, but it always has an effect on the mitigation of the penalty in a mandatory manner.
It is necessary to mention here the acute discussion position of many authors that the age of a minor is a mandatory ground for mitigating punishment and must be taken into account as a mitigating factor. However, despite the fact that this provision is enshrined in paragraph "b" of Part 1 of Article 61 of the Criminal Code of the Russian Federation, the legislator has not made it mandatory.
A number of authors point to the bilateral balance of the principle of humanism: on the one hand, "this is to ensure the safety of a person from criminal encroachments, which is based on a moral position that expresses recognition of the value of a person as a person
and striving for his or her welfare as the goal of the social process" [1].
Summing up, we should draw the reader's attention to the fact that the content of the articles of criminal law enshrining the legal status of minors often diverges from actual law enforcement practice. Thus, when imposing a punishment, the courts do not rely sufficiently on the circumstances set out in Article 89 of the Criminal Code of the Russian Federation. This problem is much more acute and these materials are not available in the case because these facts are simply not collected by the authorized bodies. To date, there is no question of the powers of any of the bodies and institutions that are entrusted with the corresponding powers. Each of the bodies and institutions has the authority and a set of regulations, provisions and instructions to collect the necessary information, carry out preventive measures and timely submit reliable information to the courts. Preventive measures refer to measures to prevent offences, antisocial acts, homelessness of minors, etc. However, these measures, powers, competences to date and are implemented by the relevant entities of health care, science, education, social welfare, etc. mentioned above. In this connection, the courts do not receive sufficient information about the personality of a minor, and such information is often not available in the criminal case file.
The following conclusion of this article should indicate the fact that when choosing juvenile punishment the court should be guided by the principle of individ-ualization. This means that all aggravating and mitigating circumstances must be taken into account equally, as well as the degree and nature of public danger, and the circumstances characterizing the personality of the guilty juvenile offender must be taken into account. In the process of individualization and differentiation of punishment, the court must apply punishment commensurate with the nature and degree of social danger of the crime committed, and prevent excessive cruelty and unjustified humanism.
The views of some scientists, humanists, are presented in this article. Their theses that all sentences concerning minors should be subject to mitigation, as deprivation of liberty does not deter crime, are worthy of respect. However, the analysis of criminal cases shows that the recidivism among the minors who received the real terms of deprivation of liberty is much lower than among those minors who got suspended sentences.
References
1. Badmaeva BB, Dondokov TS.S., The principle of humanism in the criminal legislation of the Russian Federation // Bulletin of ZabSU. 2012. No. 10. URL: https ://cyberleninka. ru/article/n/printsip-gumanizma-v-ugolovnom-zakonodatelstve-rossiyskoy-federatsii (accessed: 11.03.2020).
2. Dolmatov Alexander Olegovich Features of the appointment of criminal punishment for minors (analysis of practice) // Tomsk State University Journal. Tom. state un-that. Right. 2012. No3 (5). URL: https://cyber-leninka. ru/article/n/osobennosti-naznacheniya-ugolovnogo-nakazaniya-nesovershennoletnim-analiz-praktiki (accessed: 11.03.2020).
3. The portal of legal statistics of the General Prosecutor's Office of the Russian Federation http://crimestat.ru/analytics (Date of access to the electronic resource 03.03.2020)
4. Selezneva N. A. Punishments imposed by a minor under the criminal law of the Russian Federation // Vestnik RUDN. Series: Jurisprudence. 2003. No1. URL: https://cyberleninka.ru/article/n7nakazaniya-naznachaemye-nesovershennoletnim-po-ugolovnomu-pravu-rf (accessed:11.03.2020).
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6. The Criminal Code of the Russian Federation. Adopted 06/13/1996 N 63-®3 (as amended on 02/18/2020) ATP Consultant Plus, http://www.consult-ant.ru /docu-ment/cons_doc_LAW_10699/0cc4f741fbd9a2392503 5e7ba49750e99741734e/ (Date of access to the electronic resource) 02.03.2020
7. Chechel Grigory Ivanovich Controversial issues of sentencing minors // Society and Law. 2011. No3 (35). URL: https://cyberleninka.ru/article/n/spornye-voprosy-naznacheniya-nakazaniya-nesovershen-noletnim (accessed: 11.03.2020).
8. Juvenile justice in the Russian Federation: crim-inological problems of development / Andryushchenko L.N., Vedernikova O.N., Maksudov R.R., Meleshko N.P., et al. - S.-Pb .: Yurid. Center Press, 2006. - 787 c. (212)
