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29«C@yL@qyiym-J©yrMaL»#2®I44),2@19 / ECONOMIC SCIENCES
дого работника на своевременную и в полном размере выплату заработной платы, обеспечивающей достойное человека существование для него самого и его семьи, и не ниже установленного законом минимального размера оплаты труда (ст. 2 ТК РФ). О своевременной и в полном размере оплате труда работника упоминается и в ст. 56 ТК РФ, где дано понятие трудовому договору. Статья 57 ТК РФ, раскрывая содержание трудового договора, предусматривает условие оплаты труда, как существенное условие трудового договора [6].
По нашему мнению, непосредственным объектом данного преступления необходимо считать право на своевременное и в полном объеме вознаграждение за труд, получение пенсий, стипендий, пособий и иных выплат.
Особенности и характер непосредственных объектов преступлений, посягающих на трудовые права граждан, подтверждают ранее высказывавшиеся предложения о целесообразности объединения соответствующих правовых норм в пределах одной главы УК РФ.
Список литературы
1. Уголовное право Российской Федерации. Общая часть. / Под ред. Здравомыслова Б.М., - М., 1999. С. 480; Наумов А.В. Уголовное право. Общая часть. Курс лекций. - М., 1996. С.496.
2. Уголовное право России:Учебник для вузов.Т 2.Особенная часть. Под ред. А.Н. Игнатова и Ю.А.Красикова, - М., 2008. С. 816; Уголовное право. Особенная часть: Учебник/ Под ред. Н.И. Ветрова и Ю.И. Ляпунова - М., 2007. С. 752.
3. Уголовный кодексУголовный кодекс Российской Федерации. федер. закон от 13.06.1996 г. № 63-Ф3: принят Гос. Думой РФ 13 июня 1996 г.: ред. 25.04.2018 г. // Собрание законодательства Российской Федерации. - 1996. - № 25. - Ст. 2954.
4. Иванов В.И. Уголовно- правовая охрана прав граждан. - М.,1967. С. 324
5. Конституция Российской Федерации: принята всенародным голосованием 12 дек. 1993 г. (с учетом поправок, внесенных Федеральными конституционными законами РФ о поправках к Конституции РФ от 05. 02. 2014 г. № 2-ФКЗ, от 05. 02. 2014 г. № 3-ФКЗ) // Российская газета - 1993. -25 дек.
6. Трудовой кодексРоссийская Федерация. Законы. Трудовой кодекс Российской Федерации: федер. закон от 30. 12. 2001 г. № 197-ФЗ: принят Гос. Думой РФ 21 декабря 2001 г.: ред 02.08.2019 // Собрание законодательства Российской Федерации. - 2002.- № 1.- Ст. 3.
UDC 343.3/.7
Serebrennikova A. V.
Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov
Russia, Moscow Lebedev M. V.
Postgraduate student, Department of criminal law and criminology Moscow state University M. V. Lomonosov, Russia, Moscow DOI: 10.24411/2520-6990-2019-10664 LAW ENFORCEMENT ASPECTS OF THE NORM ON A TERRORIST ACT AND DOCTRINAL
ANALYSIS
Abstract
The Criminal Code of the Russian Federation 1996 contains rules criminalizing a limiting number of crimes. Due to legislative and other problems associated with the imperfection of the legal technique, different types of crimes sometimes have fuzzy borders, and elements of corpus delicti are often related. These gaps in practice often lead to qualification errors. Ehe paper considers individual problems of qualification, for example, article 205 of the Criminal Code.
Keywords: Criminal Code, terrorism, terrorist act, hostage-taking, judicial practice, qualification, qualification errors.
The objective side of a terrorist act is two stages. The first stage is the commission of an explosion, arson, other actions comparable in degree of public danger and also intimidation of the population, creating the danger of causing the death of others and property damage in a significant amount. The second aspect is the threat to commit these actions. These signs serve to qualify a terrorist act and its delimitation from other corpus delicti.
The subject of the crime under Article 205 of the RF Criminal Code, is not specified in the criminal law and is not an obligatory sign of corpus delicti, therefore we cannot refer to it in this work, just as to the identity
of the victim. When in Article 206 of the RF Criminal Code we define the victim as a person captured and held as a hostage. An additional object of Article 205 of the RF Criminal Code is public relations that are aimed at ensuring the safety of life and / or health of an individual, and property, and others that are not related to property interests may. These include the normal functioning of government bodies and organizations. An additional object in article 206 of the RF Criminal Code is public relations that ensure personal freedom.
We illustrate the provisions indicated in the paper, using the example of judicial practice. The Judicial Collegium for Criminal Cases of the Supreme Court of
the Republic of Tatarstan examined the criminal case No. 2-9 / 2015 of 03.19.2015. concluded: "Fakhrullina G.F. I went into the visitors' office of a notary's office located in: Kazan, ... and she demanded to give her a certificate of inheritance under the law, namely, for an apartment...
After that Fakhrullina G.F. showed the notary's office employees the belt she had previously put on her, connected by wires with a button, threatening that it was a "martyr" belt stuffed with trotyl, which she would detonate by pressing the button in case of failure to fulfill her requirements ... Following criminal intent Fakhrullina G.F. transferred her claims, written in advance by her own in writing, to the police officers who arrived at the notary's office, told them that she did not want to negotiate with them, release the hostage FULL NAME32 until her requirements were met, insisted on the issue of a certificate of inheritance under the law to her and the provision of funds on accounts of FULL NAME40 in OJSCAIKB ...
To create a public resonance Fakhrullina G.F. also demanded the arrival of the leadership of the Republic of Tatarstan and the leadership of law enforcement agencies in order to influence previous decisions of the authorities regarding her complaints about the actions of the notary of the Kazan notary district FULL NAME23 as an additional condition for the release of the hostage FULL NAME32 "[6].
One of the frequent problems in qualifying a hostage-taking on the basis of a sign of the objective side is that the law enforcement officer does not always pay attention to the necessary elements of the corpus delicti: capture and retention. The mere fact that there is a restriction of freedom, an obstacle to the movement and leaving a person's place of detention indicates a sign of violence. Non-hazardous violence for life and health, the restriction of freedom is interpreted in paragraph 21 of the Resolution of the Plenum of the Supreme Court of December 27, 2002 N 29 "On judicial practice in cases of theft, robbery and burglary" [8, p.67].
The verdict of the Medvedevsky District Court of the Mari-El Republic in the case of 08.10.2015 established, "Popov A.A. committed the capture and retention of the juvenile as a hostage, in order to force the state to act as a condition for the release of the hostage, in respect of a known juvenile .... Going to the balcony of the apartment, A. Popov lifted a helpless young child by a T-shirt, speaking the words of the threat that if the police were called, he would kill FULL NAME3
... in order to coerce the police officers, that is, the state represented by the law enforcement agency - the police, to fulfill his requirements as a condition for the release of the hostage, he put forward the police officers the conditions to arrange a meeting with the police officer he knew - the district police officer. ... arguments of Popov A.A. about his innocence of the alleged crime, that he did not seize and did not hold the juvenile FULL NAME3 as a hostage, did not put forward any demands to the police officers, the court finds vicious, caused by the desire of Popov A.A. to avoid criminal liability for what was done. "[5].
Another distinction between a terrorist act and hostage-taking is the absence of hostage capture, most of which is a danger to others, i.e. an indefinite circle of persons. Such a danger is inherent in other crimes of a terrorist nature. 205, 211, 278 and 279 of the RF Criminal Code.
Another feature of the distinction between a terrorist act and hostage taking is the presence of different goals when committing an act. When committing a terrorist act, the goal is aimed at forcing the authorities to make decisions.
In accordance with the materials of the criminal case No. 2-8 / 2015 contained in the sentence of the Supreme Code of the Republic of Dagestan dated 21.04.2015, one can consider the goals of the guilty person in the commission of a terrorist act: "... committing a terrorist act..., with the aim of forcing the authorities to make a decision on changing the existing management order and granting state sovereignty to the Republic of Dagestan with a view to further creating on its territory an independent Islamic state operating on a the principles of Sharia. The person # 1 chose, as the means of implementing the crime planned, a high-power explosion in the place of public worship of adherents of a different direction in Islam to cause death to the maximum number of people and intimidate the population "[7].
The goals during the hostage-taking can be a guilty's desire to force the state, organization, or citizen to perform certain positive actions, as well as to abstain from committing any actions. The purpose of Article 206 of the RF Criminal Code is the desire to coerce the state, organization, or citizen to commit certain positive actions, as well as to refrain from committing any actions. So the materials of the criminal case No. 12002 / 2017 contained in the Decision of the Sernursky District Court of March 10, 2017, states: "A.N. Vaseev seized and detained the person as a hostage, ... expressed his demand as a condition for the release of the hostage FULL NAME1, to take action, namely, within five minutes to come to the territory of the LLC ... and bring for A. Vasseev a bottle of vodka, while expressing, in case of non-compliance with his requirements, the threat of killing FULL NAME1 with a kitchen knife "[7].
The domestic literature describes that a situation is possible when a terrorist act and hostage-taking can become norms competing in qualification. According to V.A. Osipov such a conflict can be resolved if we consider the norms asthe general and the particular: "terrorist activity is a general norm in relation to hostage-taking" [3, P67], and in this case there is a qualification rule when the law enforcer should give priority to a special norm.
The next element of the distinction of Article 205 and 206 of the RF Criminal Code is a note to the articles containing the conditions for exemption from liability. So, in accordance with Article 205 of the RF Criminal Code, a person is exempted from criminal liability at the stage of preparation if it is possible to complete the objective side. Article 206 of the RF Criminal Code contains a similar note, within the meaning of which, the person who committed the crime can be exempted
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from criminal liability. The difference is a special condition, namely: "voluntarily or at the request of the authorities, he will release the hostage if his actions do not contain a different corpus delicti". Based on the criminal cases examined by us, it can be argued that such crimes often contain other corpus delicti such as drug trafficking, intentional harm to the hostage's health, arms trafficking, property damage, and others. In this case, the guilty person has the opportunity to significantly reduce the grave consequences of the crime.
So, according to the Verdict of the Klintsovsky District Court of March 25, 2016 in the case No. 1-7 / 2016, "by Pugina R.V., in order to compel the Klintsovsky Department of the Ministry of Internal Affairs of Russia, as a state authority , to bring him his former wife and juvenile daughter, as a condition for the release of the hostages, but then, at the request of the employees of the Klintsovsky Department of the Ministry of Internal Affairs of Russia, independently released the hostages Korzhukhova G.A. and Pugina R.V., in due to it, in accordance with the note to Article 206 of the RF Criminal Code , he is subject to exemption from criminal liability for seizing and holding a person as a hostage, committed in order to coerce the state and the citizen to commit an action as conditions for the release of the hostage, using an item as a weapon, in respect of two persons, provided for in Article 206, Part 2, Clause "d", "g" of the RF Criminal Code .
The analysis of the norm shows that this provision, as indicated in the note, can only apply to that part of the objective side, which consists in preparing for the commission of a terrorist act, but does not extend its effect to those criminals who express a threat of commission, while when hostage-taking, the note extends its effect to the entire objective side of the crime.
However, the actions of Korzhukhov A.N. contain a different corpus delicti of two crimes, namely: Article 127, Part 2, Clause "d", "g" of the Criminal Code, since Korzhukhov A.N. under the above circumstances, acting intentionally, using a knife used as a weapon, with the aim offorcing the former spouse - K.V.V. to fulfill the requirements presented to them, he kept his mother - Korzhukhova G.A. and Pugina R. V., a close friend of her, by locking the inside door of the house and threatening to use violence against them, unlawfully, forcibly limited the freedom of movement of two persons Korzhukhova G.A. and Pugina R. V. in time and space, thereby illegally depriving them of their freedom, which was not connected with their abduction; as well as Article 119, Part 1 of the Criminal Code, since Korzhukhov A.N. under the above circumstances, acting intentionally, using a knife, threatened to kill Pugina R.V., who had reason to fear the realization of this threat» [4].
Also, one should distinguish between the corpus delicti of Article 127 of the Criminal Code of the Russian Federation (illegal deprivation of liberty) from Article 206 of the Criminal Code of the Russian Federation (hostage-taking). Differentiation is made according to the object, as well as the elements of the
subjective side of the crime. Unlike hostage-taking, unlawful deprivation of liberty does not intend to force state bodies and other persons to fulfill the requirements, but only have their purpose in restricting the freedom of movement of a person. It should be remembered that unlawful deprivation of liberty is not associated with another distinguishing feature - the movement of a person. Moreover, the motives may be any, other than stated in Article 206 of the Criminal Code of the Russian Federation. These include personal revenge, hostility, as well as hooligan motives. Here, in our opinion, there is a clear qualification error.
An example of such a qualification under Art. 127 of the Criminal Code and delineation of Art. 206 of the Criminal Code of the Russian Federation is materials contained in the Appeal Kuling of the Judicial Collegium for the Armed Forces of the Armed Forces of the Russian Federation N 201-APU19-1 dated 02.21.2019, "... according to the results of the study of the above evidence, the court came to the correct conclusion that Mikhalev A.V.carried out the capture and holding as a hostage of the driver of V. using a knife as a weapon in order to force the state to return the driver's license that had been confiscated from him earlier for the commission of an administrative offense. ...In this case, the court reasonably rejected the statement of Mikhalev A.V. about the exclusively hooligan nature of his actions, since this statement is refuted both by the testimony of the victim and the witnesses, as well as by the conclusions of the judicial phonographic and linguistic expertise. "Previously, Mikhalev A.V. requested in the appeal to re-qualify crimes from Article 206 of the Criminal Code to Article 207 of the Criminal Code on the presence of exclusively hooligan motives» [1].
Hostage-taking is a grave or especially grave crime, depending on qualifying features, and provides for sanctions up to life imprisonment. In this regard, often at the appellate stage of criminal proceedings, it can be stated how the defense declares illogical and unconfirmed grounds for re-qualification. An example of such an attempt to requalify from para "d" part 2 of Article 105, para "g" part 2 of Article 117, part 4 of Article 206, part 1 of Article 228 of the Criminal Code (25 years of imprisonment in the first instance) for para "c" part 2 of Article 105 of the Criminal Code of the Russian Federation (with a sanction of 6 to 15 years in prison) is the materials contained in the Appeal Ruling of the Judicial Collegium for the Armed Forces of the RF Armed Forces N 208-APU18-11 of 09.09.2018, "... Contrary to the argument of the defense attorney, Zhuravlev's actions related to the seizure and retention from 7.30 pm to 11.30 pm on December 3, 2017 in a locked apartment of a minor K., as a hostage, committed to compel the state and citizens to fulfill his requirements (provide weapons, a helicopter, call representatives of mass media so that the mother of the child being held comes into his apartment) or to refrain from taking any action as a condition for the release of the hostage (those present in front of the apartment must leave the premises and refrain from storming the apartment, evicting him from it and bringing him to responsibility for what was done) , with the use of
violence that is dangerous to the life and health of the victim, with the use of an meyb (knife) used as a weapon, against a minor K., which entailed the deliberate infliction of her death, correctly qualified according to part 4 of Article 206 of the Criminal Code" [2].
In the course of this study, on the example of specific criminal cases, we compared the dispositions of various articles with related elements of corpus delicti, including crimes involving criminal liability for a terrorist act and hostage-taking. In the course of the study, it was found that these norms have an external similarity in corpus delicti. Also, with external resemblance, these criminal law norms have significant differences that are inportant during the qualification and at all stages of the preliminary investigation and criminal proceedings. This issue remains open to lawyers, annually scientific papers are written on this topic, scientists discuss on a given problem. The state is preoccupied with the problem of terrorism, the legislator shows an increased interest in this topic by the development of new bills, every year educational institutions receive state grants to develop ways to solve this problem.
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