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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: 10.24411/2520-6990-2019-10698 SOME ISSUES OF QUALIFICATION OF A TERRORIST ACT (ARTICLE 205 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION)
Abstract:
The issues of qualification of a terrorist act involving the intentional infliction of death are among topical and difficult issues in the modern criminal legal science. Therefore, consideration of the scientific foundation for the qualification of this crime (clarification of the concepts of "terrorism", "terrorist act", "goals and consequences of a terrorist act") is of both scientific and practical significance.
Keywords: Criminal Code; criminal law; terrorist act; terrorist act; terrorism; terrorist activity; causes qualification errors.
For the correct qualification of crimes against social security, in particular a terrorist act, officers of law enforcement structures do not only need the knowledge of the norms and theory of criminal law, but also judicial practice.
V.N. Kudryavtsev, N.F. Kuznetsova, B.A. Ku-rinov, N.G. Kadnikov and other persons worked on the problems of qualification of crimes in the criminal law. Most of them, in one way or the other, believe that the qualification of a crime is the establishment and legal consolidation of an exact correspondence between the evidence of the committed action and constituent elements of the crime provided for by the criminal legal norm [6].
The legal basis for the qualification of any crime is its constituent elements. Let us consider the constituent elements of the crime provided for in Article 205 of the Criminal Code of the Russian Federation. In legal literature, social security is considered to be the direct object of a terrorist act, while life, health, property, organizational and administrative harm are considered to be additional objects [5]. As indicated in Chapter 2, social security is an aggregate of social relations, within which safe life activities of citizens as members of the society are performed, normal conditions for the activities of institutions, enterprises and citizens in the production of various kinds of works and in the process of handling generally dangerous objects.
In his time, Y.M. Brainin pointed out that incomplete and, accordingly, incorrect notion of the object of a crime, often causes qualification errors [2].
Russian authors also adhere to another position, according to which an encroachment on social security forms the only consequence. At the same time, there are no other, additional objects in the form of a personality, life, health and property, etc., - they just do not exist [5]. Thus, in the literature there is no unanimity of opinion on the concept of the object of a terrorist act.
As noted by R.L. Gabdrakhmanov, the complexity of qualification of a terrorist act is conditioned by the fact that it harms social security and other objects of criminal legal protection [2].
The Federal Law dated December 30th, 2008 No 321-FZ "On Introducing Amendments into Certain Legislative Acts of the Russian Federation", introduced responsibility into p. "b" of Part 3 of Art. 205 of the Criminal Code of the Russian Federation for a terrorist act, which involved the intentional infliction of death on a human, which does not seem to be fully substantiated.
When adjusting the law, the federal legislator agreed with the position of scientists and practitioners who believe that social security, as an object of the crime, covers the infliction of harm in general, including death of a human, as well as harm to health. The current wording can create difficulties in the context of delimitation of a terrorist act from murder. Firstly, in this case the provisions of Art. 2 of the Constitution of the Russian Federation on the supreme value of man, his rights and freedoms.
The supreme value of any man is his right to life (Art. 20 of the Constitution of the Russian Federation). Infringement on life must always have an independent legal assessment. In addition, the question arises as to the way to qualify a terrorist act, which caused the deaths of several people. Here, the law enforcer will give an independent legal assessment to those found responsible for the murder of two or more persons, since there is no particular qualifying attribute in Art. 205 of the Criminal Code of the Russian Federation.
The position of the Plenum of the Supreme Court of the Russian Federation with respect to this category of cases does not clarify the question of qualification of a terrorist act and application of the mentioned norms, while a part of instructions of the Plenum to qualify the crimes according to the totality of the committed crimes contradict its instructions, given previously in other resolutions of the Plenum of the Supreme Court, which have not been changed and have not been cancelled.
In particular, it is stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation "On Court Practice in Cases of Theft, Looting and Robbery" that if a person commits a murder in the process of a robbery assault, the criminal conduct shall be qualified according to the totality of the committed crimes
under p. "3" of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, as well as under p. "b" of Part 4 of Art. 162 of the Criminal Code of the Russian Federation [7]
In the Resolution of the Plenum of the Supreme Court of the Russian Federation "On Some Issues of Court Practice in Criminal Cases of Terrorism-Related Crimes", the Supreme Court instructs the courts to qualify the actions of the participants of an illegal armed group, criminal gang, criminal community (criminal organization), who committed a terrorist act, according to the totality of the committed crimes, provided for in Art. 205 of the Criminal Code of the Russian Federation and, correspondingly, articles 208, 209 or 210 of the Criminal Code of the Russian Federation (p. 13) [8]. In this case, it is proposed to qualify the actions, according to the totality of the crimes, whereas in p. 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation "On Some Issues of Court Practice in Criminal Cases of Terrorism-Related Crimes", we also see that in cases where the terrorist act had the consequence of intentional infliction of death, the criminal conduct shall be covered by p. "6" of Part 3 of Art. 205 of the Criminal Code of the Russian Federation, not requiring at the same time additional qualification under Art. 105 of the Criminal Code of the Russian Federation.
The courts do not understand the logic of such recommendations (and, in fact, instructions), since in some cases it is necessary to qualify the actions according to the totality of the crimes, while in other cases such a totality seems to be already absent.
Based on constitutional provisions, the degree of public danger of intentional infliction of death is significantly higher than social security, taking into consideration that more often than not several people or many people die during terrorist acts.
If such is the case, the Plenum of the Supreme Court of the Russian Federation proposes to qualify the action under Art. 205 of the Criminal Code of the Russian Federation only, thus "simplifying" the task, however, the law explicitly indicates the intentional infliction of death on a human (one person). In this case, the Plenum of the Supreme Court of the Russian Federation, having exceeded its authority, has in fact arrogated the right of authentic interpretation of the Criminal Code of the Russian Federation.
Actually, this is the manifestation of humanism with respect to a terrorist who has murdered one, two or more persons. Following the recommendations of the Plenum of the Supreme Court of the Russian Federation, punishment with respect to this terrorist can be imposed in the form of life imprisonment or 20 years of deprivation of liberty in the form of a maximum term, which will mean the manifestation of humanism.
It is expedient to qualify the actions of a person who has committed a terrorist act with the intentional infliction of death according to the totality of the crimes (Part 2 of Art. 105 of the Criminal Code of the Russian
Federation and Part 1 or Part 2 of Art. 205 of the Criminal Code of the Russian Federation) with the imposition of punishment according to the totality of the crimes. In accordance with Part 5 of Art. 56 of the Criminal Code of the Russian Federation, in case of partial or full overlapping of the terms of deprivation of liberty, the final term cannot exceed 30 years. In this way, principles of non-exemption from punishment, its proportionality and social justice will be implemented.
In case of commission of a terrorist act, involving the intentional infliction of death, the actions of the accused person form a totality of the crimes provided for in Art. 205 and Part 2 of Art. 105 (until and including p. "a", "6", "e", "«", "3", "rf') of the Criminal Code of the Russian Federation.
Thus, correct and exact application of the norms of a terrorist act requires the adjustment of the applicable criminal legislation. Thus, it is expedient to complement Part 2 of Art. 105 of the Criminal Code of the Russian Federation with a qualifying attribute - commission of a murder, involving a terrorist act. This position has been more than once expressed in the literature [4]. At the same time, it is expedient to decriminalize p. «6» from Part 3 of Art. 205 of the Criminal Code of the Russian Federation.
Bibliography
1. Brainin Y.M. Criminal Law and Its Application. M., 1967. Page 165.
2. Gabdarakhmanov R.L., Qualification of a Terrorist Act under the Criminal Code of the Russian Federation // Russian investigator. 2015. №4. Pages 16-20.
3. Kadnikov N.G., Mentioned works. Page 73; R.L. Gabdarakhmanov. Crimes against Social Security. M., 2003. Page. 11.
4. Kadnikov N.G.. Qualification of a Terrorist Act // Issues of Application of the Criminal Law and Prevention of Crime. Collection of scholarly articles of the Moscow University of the Ministry of the Interior of Russia. M., 2005. Page 13.
5. Komissarov V.S., Terrorism, Banditism, Hostage Taking and Other Serious Crimes against Society. M., 1997. Page 31; A.I. Korobeyev. Crimes in Transport. Vladivostok, 1992. Page 47.
6. Kudryavtsev V.N., General Theory of Qualification of Crimes. M.: ropncrb, 2007. Page 5; B.A. Ku-rinov. Scientific Foundation for the Qualification of Crimes. M., 1984; N.G. Kadnikova. Qualification of Crimes and Issues of Judicial Interpretation. M., 2003. Page 3.
7. Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27.12.2002 "On Court Practice in Cases of Theft, Looting and Robbery" // Bulletin of the Supreme Court of the Russian Federation. 2003. No. 2. p. 22
8. Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27.12.2002 "On Some Issues of Court Practice in Criminal Cases of Terrorism-Related Crimes" // Bulletin of the Supreme Court of the Russian Federation. 2012. No. 4.
