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CRIMINAL LAW
A.I. Chuchaev*
TRANSPORT CRIME MECHANISM (concept and general characteristics)
Abstract. The article considers the mechanism of transport crime basing on the polyer-gatic essence of rail, water and air transport and on monoergatic essence, i.e. vehicles. It gives the classification of ergatic systems, their relationship, analyzes the disputable issues of crime mechanism in general and negligent crimes in particular, formulates the concept of transport crime mechanism, stands its objective (technical system, informational system and situation) and subjective (subject to drive the transport) elements, shows the distinction between criminal and criminological concept of crime mechanism, the ways of harming public relations characterizing safety of transport operation. Keywords: jurisprudence, transport, ergatic system, mono-and polysystem, classification of ergatic systems, transport crime, criminological mechanism, penal mechanism, elements of the mechanism, operator, technical system, informational system, situation.
When determining the mechanism of transport crime it is necessary to base on transport characteristics. Railway, air and water transportation refer to typical polyergatic systems, i.e. «physical, object- orientated, closed systems including a man as the main, decisive link»1; and road transport, as a rule, to monoergatic systems. In literature they are also called social engineering systems or «man — machine» system. (MMS). In the ergatic system we can find all the forms of inter-object communication, with the man influencing the relationship therein.
Ergatic systems available on the transport, differ in the number of operators, degree of continuity of human involvement in the management of the process, kind of communication of the operator with the object driven.
On the first criterion the mono-and polyergatic systems are distinguished. In the first case they are served by the man, in the second — the team of operators. Monoergatic systems of transport are usually more, but they are not isolated from each other, together they constitute the polyergatic system, participating in its work as subordinate elements.
According to the degree of the continuity of human involvement in the management we can differ systems, where the operator works in the immediate or deferred maintenance. In the first case
1 Platonov G. Ergonomics at the railway transport. M., 1986. P. 14.
he commits control actions on the object taking into consideration the received information, assessment, etc. Violation of the continuity degree of participation of the operator in the control actions (when managing or general subject «falls« from the system or makes mistakes) can cause transport accidence.
The task in this case is to find out causes of erroneous actions, which, in its turn, allows to formulate recommendations aimed at eliminating the defects of transport worker behavior, strengthening its «operational« reliability.
The majority of operators of automatic control systems work in the so-called delayed service. But I must say that there is no mode given once and for all, sometimes they are both planned. However, it should be borne in mind that the transition from one mode to another (such as from automatic control to the manual one) requires an additional effort from the part of the controlling subject. It can be explained with the fact that a certain time is needed to move to a new dynamic stereotype of gathering information and sensorimotor coordination. The dynamic stereotype of conversion of the incoming information stream into the control action changes as well and hence psychophysiological tension increases2, which sometimes leads to adverse consequences.
2 Bugaev B. Ergonomics and flights safety. Kiev, 1974. P. 33.
© Chuchaev A.I., 2014.
* Chuchaev Alexander Ivanovich — J.D., Professor of Criminal Law, Moscow State Law University named after O.E. Kutafin. [[email protected]]
9, Sadovaya- Kudrinskaya str. 123995, Moscow, Russia
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Depending on whether the operator is on the object being managed or exercises the control action at a distance, on the transport there are direct acting system and the system with remote communication.
Ergatic systems can be classified from other positions as well, such as on the role and place of the man in them. The relationships between system components largely depend on the fact whether the subject participates in creating the solution and forming the control action or he is an object himself. The type of tasks management may be also determinant. Finally, a number of targets serve as an important starting point of classification; the ergatic system is designed to achieve them. This allows to distinguish two major classes of systems: single-purpose and multi-purpose.
All ergatic transport system are hierarchical. The fact is that implementing management process their individual parts perform various functions. However, not only functions but also the steps where the systems with the help of various means and methods achieve the management objectives are unequal. Each previous exposure entails the following: no reason — no investigation. This is the basic principle of hierarchical systems built on the grounds of subordination, importance of individual stages of work.
The main problem of hierarchical systems is the coordination of actions on creating solutions. In any system some subsystems of the lower level control separate processes that make up the overall process control, and are subject to a unique higher level system. Such systems as separate units or modules come in large and complex management systems. Each lower level subsystem may be a man-machine system that is free in selecting the control solutions within its competence.
To make the lower subsystems control action lead to the optimal solution, the higher level subsystem should pre- optimize the set of performance criterion.
In ergatic systems influence of the highest level subsystem on lowest subsystems is often expressed in coordination of their activities. Managing subject in the hierarchical ergatic system may take any level. The higher the degree of organization is the more complicated is the coordination of subsystems activities — the main type of the control action in ergatic systems. Thus, the study of transport as polyergatic system can and should be implemented as a study of a single functional whole. One should consider that in this approach criminology and criminal law can be enriched by combining technical disciplines and sciences about man and his labor activity, describing characteristics of the man as a component of the automated system. It is referred to the processes of perception of the information, decision-making, study of
movements and other effector processes, problems of motivation and readiness for activity, stress, collective activity of operators. From the viewpoint of transport security it is essential to study influence of the monotony of operations, conditions of work, physical environmental factors, biomechanical and physiological factors on the control subject.
These and other aspects of trouble-free transport functioning is appropriate to examine through the mechanism of transport crime. However, it should be noted that, on the one hand, criminologists admit: the detailed analysis of the mechanism of a crime is more productive in the study of the determination of a criminal conduct as it involves identifying not only the whole complex of events, phenomena, processes and personality features, but their interactions, and the role of each factor in a crime3. On the other hand, the definition of the mechanism of the transport crime is shown only in a few papers, meanwhile a considerable amount of researches are devoted to transport crimes, primarily motor transport crimes4.
Elaboration of this concept is crucial. It will allow not only to outline the range of elements to be included into the mechanism of the crime, but, more importantly, to get inside the phenomenon under investigation.
The literature defines criminal behavior, which is known as «...communication and interaction of external factors of the objective reality and internal mental processes and states determining the decision to commit a crime, directing and controlling its performance»5. At the same criminal behavior is represented as a process running in space and time, and comprising not only the actions that change the external environment, but also preceding psychological phenomena and processes, which determine the mechanism of wrongful action.
From the foregoing, in our opinion, it is clear that, strictly speaking, it is a «microcosm» of the antisocial phenomena, i.e. the circumstances characterizing the criminal's personality and influencing the formation of subjective causes of wrongful conduct. In this definition it is not included the so called «macrocosm», in which criminogenic factors arise and act. These include social conditions of people's lives providing impact on their behavior.
3 Kudryavtsev V. Causality and determinism in criminology // Problems of causality in Criminology and criminal law. Vladivostok, 1983. P. 6.
4 For example, V Zhulev tells about social mechanism of traffic accidents (V Zhulev. Prevention of traffic accidents. M., 1989. P. 90). N. Yakubenko and A. Kolenko consider traffic accident from the perspective of anthropotechnical system (Yakubenko N., Kolenko A. Traffic accident: the concept of qualification, punishment. Vladivostok, 2001. P. 5-15). M. Kolchin analyzes criminal legal problems of the railway safety on the basis of violations of criminal law mechanism of its safe operation (Kolchin M. Security of Railway Transport: criminal law problems. Vladimir, 2009).
5 Mechanism of criminal behavior / ed. by V. Kudryavtsev. M.,
1981. P. 30.
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Classification of criminal behavior mechanisms also convinces of it. There are four major groups connected with: 1) a strain of needs and interests of an individual; 2) the divergence (contradiction) between needs (interests) and opportunities of a subject; 3) deformation of moral and legal concepts, value system and social attitudes of the personality; 4) defects of decision-making and implementation of solutions.
It is easy to notice that the definition of the criminal behavior mechanism and its classification is almost entirely «oriented» for premeditated crimes; they comprise acts committed by negligence. However, some authors believe that the characteristic for crimes committed by negligence is the mechanism of making a wrong decision, the essence of which is an incorrect evaluation (no foresight) of really threatening harmful consequences6.
It seems wrong to reduce all the range of negligent crimes, including even so called technical crime, to incorrect decision- making or to the shortcomings of its performing. It's evident that the mechanism of some crimes is different. Thus, one of the reasons of accidents on the railway is that foot platemen fall asleep during the operation. Moreover, among a number of factors contributing to this (not always reasonable labor organization, disadvantages of the professional selection and health status current control etc.) a special role is played by the circumstances associated with the railway transport tendency: increasing of the movement speed and smoothness, automatization of driver's labor. The first factor leads to the overload of the visual analyzer with a large monotonous flow of information, the development of the hypnotic state, and to the motion sickness due to the soft rhythmic effects on otolith apparatus. The second trend causes a decrease of the volume of active muscle operations of a foot plateman, counteracting motion sickness7.
The mechanism of an offense committed by a machinist in such a state, is not associated with any decision, nor with its execution. Therefore, prevention of such case should primarily be directed to neutralize the adverse impact of working conditions on a person.
Practice shows that negligent crime in the domestic sphere may have totally different mechanism. Hence, it's unnecessarily to reduce it only to defects of decision-making and implementation of solutions, although it must be recognized that, in many cases, this mechanism prevails.
V. Kvashis analyzing cited definition of the mechanism of criminal behavior, rightly notes that such traditional interpretation is quite fair, however, it is only a general scheme to determine the most ap-
propriate mechanisms of crimes. In reality its completeness can be different, and so in many cases the negligent crime mechanism functions in a «condensed« or «collapsed« form. Having pointed out, that the first three groups of mechanisms of criminal behavior have certain things in common with the mechanism of negligent crimes which is a classic type of mechanisms referred to in the fourth group, V. Kvashis contradicts himself, confirming the conclusion about defects in decision-making and action as a single mechanism of negligent crime. Specificity of negligent crimes he sees in such an interaction of objective and subjective, where negligent causing of harm is a contradiction between the objective exigencies of the situation imposed on a person, and inadequate subjective perception of the current situation. This contradiction is what often leads to erroneous decisions and wrongful acts8. Thus, in our opinion, V. Kvashis narrows down the mechanism of negligent behavior, reducing its psychological basis only to improper evaluation of the objective situation that takes priority of a crime.
Decision making, as it is known, is a psychological process of selecting the preferred embodiment of conduct on the basis of information about the situation and possible consequences. According to the theory of activity structure it consists of three stages: preparatory, main and controlling. Consequently, the content of any of them may be defective, and not only the assessment of the situation, according to V. Kvashis. Moreover, elements of the mechanism of negligent crime committed in the area use of technology can not be reduced to the person and situation. It also includes technical systems themselves as well as the information ensuring their functioning.
In determining the mechanism of criminal behavior also other errors occur. They are caused by transferring problems of modeling on the criminology, desire to construct a scheme of human behavior, «to determine the model of the future encoded in the brain». Thus, according to B. Volzhenkin, the same person, being twice in the same situation, always behaves similarly9. In the context of criminology this means that under certain determinants the offense is as necessary, as necessary any consequence generated by a certain cause under certain conditions. Any different approach would mean, as the author thinks, the recognition of indeterminism.
B. Volzhenkin's position was reasonably criticized. B. Volkov, in particular, wrote on the mentioned: «In fact, there is no such strict dependence between the factors that determine both the will of a man, and his behavior»10. So not only the
The course of Soviet criminology: in 2 vol. Vol. 1. M., 1985. P. 375. Work safety in railway transport and industry. Kharkiv, 1967.
P. 6-7.
8 Kvashis V. Criminal negligence. Vladivostok, 1986. P. 55, 57.
9 Volzhenkin B. Deterministic concept of criminal behavior // Sov. state and law. 1971. № 2. P. 83-84.
10 Volkov B. Deterministic nature of the criminal behavior. Kazan, 1975. P. 52.
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same person in the same situations behave differently, but different people in similar situations act equally. N. Struchkov pointed out that determinism of human behavior should not be reduced to the mechanical influence of external, social conditions on human behavior, directly because it is subject to the will of a particular individual11.
Determinacy of human behavior occurs differently from the nature phenomenon, it is based on other grounds12. Specific act of human activity is always conditioned socially. But the situation gives rise to an act of volition not on its own, but only in conjunction with a specific personality. A set of individual features of the man determines the content and orientation of an action. This reflects the peculiarity of causation of the human behavior. It appears notjust as a result of feedback of objective and subjective factors but as a complex process in which external circumstances interiorize first, and only then exteriorize.
Crime is always a voluntary act, but it is, according to A. Yakovlev, committed under the influence of objective circumstances. Based on this, an act develops from the number of factors interacting between them. Therefore crime is «a result, a final «product» of a certain kind of interaction that took place between an individual and the environment, that environment where factors of a more general, objective nature both find their indigenous «tan-gible« expression»13.
B. Volkov came to the problem of crime mechanism from a position of free choice of behavior. Sharing as a whole A. Yakovlev's concept, the author emphasized the interaction of objective and subjective circumstances, which are expressed in that external conditions (environment) provide the possibility of different behavior. But the choice of behavior in this case is up to the man. Only an individual relying on his mind and will, decides how to proceed. Consequently, there is a unity of the objective and subjective, that in each individual case expresses the essence of anti- social action. However, the «behavior of a human in the society is determined not only by the force of deterministic values of some circumstances, but also by the norms of morality and law. Therefore, freedom of expression for offenders does not mean only rec-
11 Struchkov N. Problem of criminal's personality. Leningrad, 1983. P. 71.
12 «Just — writes B. Cedars — as the phenomena in nature, society and our own spiritual life refer to qualitatively different levels of structural organization of the matter as their typical links, expressed in the notion of determinism, are also obviously not confined to any typical link, but are correspondingly different orders or level determinacy of phenomena — from the simplest (physical and mechanical) to complicated (social and psychic)». (Kedrov B. Scientific concept of determinism // Modern determinism and science. Novosibirsk, 1971. P. 189).
13 Yakovlev A. Interaction with the media personality as an ob-
ject of criminological research // Sov. state and law. 1966. № 2.
P. 55-56.
ognition of the possibility to do differently due to specific circumstances, but also recognition of the public danger of the offense»14.
To study the mechanism of crime commitment other ways were offered too, based, specifically, on the study of criminological aspects of guilt. Thus, F. Gilyazev considered it expedient to study the blame in two directions: intraindividualist, i.e. intrapersonal (individual and his features, personality traits and characteristics, its orientation) and interindividualist, i.e. interpersonal (taking into account these relations, regularities of the process of human interaction)15. Thus, the concept of F. Kilyazev comes to the interaction of social situation impacting on the formation and behavior of a personality and to the personality itself. Negligent crimes have specific features that distinguish them from the willful infringements. In criminological terms, this difference primarily lies in the mechanism of infliction of socially dangerous consequences which is peculiar only for negligent crimes.
Mechanism of negligent transport crime as a kind of negligent crime generally is a dynamic process, certain interaction of the elements that make it up. In other words, it is a generalized «image» of attacks on the safe transport operation. Therefore, it is first necessary to identify the terms of this image (elements of the mechanism), secondly to determine their interaction, and thirdly, to show this interaction in dynamics.
Transport as a polyergathic system includes various subsystems. Elements of transport functioning are: a) technical system; b) informational support; c) situation; d) managing subject.
Technical system is referred to the complex systems with all their distinctivecharacteristics. On transport they represent a separate element of interaction, therefore it can not be attributed to the situation of a crime. If during an intentional act a tool used to achieve a criminal result substantially has no independent value, then during the commission of a negligent crime the technical system is out of control and therefore becomes extremely important in the etiology of negligent crime.
On the basis of study and analysis of adverse factors causing transport accidents the relevant precaution norms are produced. Their function is to put actions of transport workers within certain limits and thereby establish boundaries of safe behavior of persons managing technical system. In other words, there are special safety precautions, with the legal force given. Violation of these rules may lead to the fact that technical system will be out of control of the managing subject and will do harm.
Based on the above P. Dagel drew the conclu-
14 Volkov B. Idem. P. 61.
15 Gilyazev F. Some questions of guilt in criminology // Questions of efficiency of the fight against crime and improvement of legislation. Ufa, 1975. P. 41-43.
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sion that «the security rules are also a part of a criminogenic situation of a negligent crime, they play a role of opposing factors designed to neutralize danger weapons existing in the situation»16. Such an approach seems unfounded. Any rules govern the activities of someone or something (in transport — the work of relevant technical systems or operators on their maintenance), it would therefore be correct to consider them together with the technical system or analyzing the behavior of a personality. Incidentally, P. Dagel himself, when questioning about why safety rules do not play a security warning roles, why they are violated, for the answer offered to contact the infringer. The role of the vehicle in the mechanism of intentional and negligent offenses differs, and the degree of technical system «controlling« is not the same too. In an intentional crime a vehicle is held by a person in a controlled mainstream, while criminal negligence comes out from it17. Technical system in the latter case is fully or partially uncontrollable.
In papers devoted to problems of combat against accidents in transport the informational support is usually not allocated as a structural portion of crime mechanism. It is either referred to the crime instruments (P. Dagel) or it is kept silent about it at all (V. Lukyanov, V. Kvashis). Both decisions unreasonably belittle the role of informational system in providing the transport safety, and transport activity is inconceivable without timely, accurate and multidisciplinary information.
Informational support is an integral part of transport operation, therefore its defects can cause accidents, for example, by failure to detect signals, their misperceptions, incorrect assessment, inadequacy of conclusions made from the information received. It is impossible to figure out the operation, for example, of a train when a driver doesn't possess any information. Inherency of informational support from the transport is confirmed by concrete studies, judicial practice on traffic safety crimes cases or transport operation crimes. Interacting with other elements (technical system and situation), fixing their condition, informational support, as a matter of fact, creates a program for interiorization, contributing to the reflection of external practical activities in the minds of humans. Consequently, exteriorization, the transition of the activities from the internal plan to external practical forms of behavior, largely depends on the set of perceived information.
The crime mechanism traditionally includes the situation when a crime was committed. This is clear: all human activity takes place in a particular situation, having dynamic and evolving nature. Most authors who have studied the problem of crime mechanism
understand the situation as a combination of conditions and circumstances creating a certain atmosphere (now we won't go into the existing nuances). V. Pankratov and M. Samolyanova offered another definition. According to them, negligent crime situation includes: 1) person guilty of the crime; 2) victim of offense; 3) source of increased danger, which is in certain relations with the guilty person and with the victim of crime who has suffered physical or material damage. Authors also include there standards of social behavior, standards of treatment a source of increased danger and other rules.
As the first element of a situation it is considered a source of potential danger. Its notion is complex, authors identify objective and subjective components in it. The former include natural (physical) and technical qualities and features, the second — psychophysical and biopsychic ones.
Around the hazard source a danger zone is created, being in which is a real threat of the contact with this source. From the persons responsible for technical devices it is required special attention, professional literacy, special sense of responsibility. The guilty and the victim in the situation interact with each other and with the source of danger18.
The position of V. Pankratov and M. Samoliano-va is new evidence that the situation («the whole situation») is essentially identified by the authors with the mechanism of the crime. In its content it is embedded everything that is both objective and subjective determinants taken in the interaction and development. It is hardly appropriate to do it for several reasons. First, the terminology generally developed in the theory of criminology is confused, in other words the criminological thesaurus is violated. Second, elementwise analysis of the crime mechanism, detection of the contents of each component, roles and importance in the determination of crimes allows a deeper insight in the essence of the phenomenon, to know it better. Finally, thirdly, it looks unreasonable to recognize an independent element of the mechanism of the injured party (victim). It's enough to say that not all crimes there is such an element. And where there is a victim, his behavior is completely covered by the situation as an element of the mechanism being dangerous factor of the situation.
Situation can not be imagined like something petrified, static. It may vary, and sometimes quite quickly. This is especially typical for the air transport. Therefore, one should distinguish the situation prior to the activity of a transport employee and the situation incurred in connection with its activities. They differ qualitatively, so you need to talk about the interval state of the situation or sequence of situations.
16 Mechanism of criminal behavior. P. 41-43.
17 Greenberg M. Crime object in the field of machinery use //
Problems of the legal science. Novosibirsk, 1976. P. 125.
18 Pankratov V., Samolyanova. M. The negligent crime situa-tione. Structural analysis // Questions of the fight against crime. № 33. 1980. P. 55-63.
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In a transport crime the situation affects both the generation of the control action and on its performance due to errors in which technical system goes out of control of the managing subject. The situation «participates» in the event of direct criminal consequences, stipulating its gravity together with the features of the vehicle.
The situation may develop in two diametrically opposite directions. Being nonhazardous in the original state, due to various factors (storm, distorted information on the meteorological situation arrived onboard, etc.) it may become more complicated and ultimately lead to harmful effects. In other words, developments will be negative. Otherwise, although there is an interval state of the situation, its quality remains unchanged if the control subject does not interfere in the developments. Finally, when a situation becomes accidental even before the intervention of a man, its positive development is possible if the transport employee detects an emergency situation; recognizes it; selects control impact; exercises it ; controls localization of the accidental situation.
In other words, danger as a feature of a situation may be different in different stages of development of the transport mechanism crime. However, to be precise, it is fundamental for the negligence not so much the objective content of the situation as the subjective perception of it by a transport worker.
Technical system, informational support of transport activities and the situation contain danger only in potentially. The possibility of harm is actually implemented only by human behavior. Personal factor is crucial in the mechanism of commission of any crime, including transport crime.
Thus, the transport mechanism crimes include objective (external) and subjective (personal) factors. The first group of circumstances, creating a danger of harm, does not deprive a transport worker of his freedom of choice19.
The situation only assumes a different behavior of a control subject in the created conditions, including the one which allows to avoid an accident. Otherwise, there may be no question of guilt, and, consequently, of crime. In such situations either force majeure, or an incident take place.
Elements of crime mechanism — technical system, provision of information, situation and controlling subject — should be considered as factors mutually influencing on each other within single process in a given place and time. And not only the interacting parties are very significant, but the processes and their interrelationship and interdependence.
19 «Man is capable to transform the reality in a constructive and creative way, to change the behavior in accordance with the changing situation, to adjust actions reasonably and to self-regulate them» (Spirkin A. Consciousness and self-consciousness. M., 1972. P. 83).
The mechanism of transport crime can be either expanded or collapsed in form (without interval situations). By form, it comprises the same elements as the mechanism of lawful behavior. They differ only in the social content of the personal factor.
Thus, the activity mechanism of railway, air, water and road transport includes, as indicated, technical and informational systems, the situation (also called the external environment).
The one who operates technical systems is a transport employee — the control subject. The extended mechanism of a crime in this case is as follows. Analyzing visual information and the one from, for example, dispatchers (motion control) assessing the state of the technical system and the nature of the situation, the control subject (pilot, captain, navigator, machinist, driver etc.) makes a decision. It may be true or erroneous, inadequate to objective circumstances. One or the other factor of external influence on technical system, equipment failure or defects in the information support may complicate the conditions of transport operation causing new situation — the difficult one. It is first of all characterized by the fact that technical characteristics of the system worsen, affecting its safety, and increases the physiological burden on individuals who manage transport.
At this stage, the mechanism of functioning of transport gives only failures that may be successfully eliminated. Thus, difficult situation may develop, and may not develop in the following situation. This depends on a number of circumstances, including optimum control action made by the control subject.
A difficult situation under adverse factors turns into extreme one when technical characteristics remarkably worsen (for example, the stability of the vessel, its controllability, buoyancy, etc.), several technical parameters of the system go out of the operational restrictions, but do not reach the maximum limit restrictions or design conditions, significantly increases the psychophysiological burden on the subject to control. Transition into the next stage can be interrupted by on-time and right actions of transport employees, changes of the technical system mode, the elimination of defects in informational support, effective measures assumed by the ergatic chain of another level.
This situation is like a border dividing the mechanism of transport functioning and transport crime mechanism. Incidentally, the extreme situation is characterized by the fact that precisely at this stage it depends on the behavior of an operator (control subject) whether he can transform into a criminal.
The next situation is an emergency situation. Its distinctive features are: output of technical characteristics beyond the limitations or design conditions; psychophysiological burden on the subject to control extremely increases. At this stage, the first significant in the criminal law terms link in
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the chain of cause-effect relationship appears. Its development can be interrupted by the actions of either the controlling subject, or any other person. The possibility of harm to legally protected object in both cases will not materialize in reality, but the legal assessment of the situation may be different.
The last highlighted situation is catastrophic. When it occurs, the development of causal link becomes irreversible, preventing criminal consequences is almost impossible20.
The foregoing leads to the conclusion: transport crime mechanism is the relationship and interaction of the control subject with a technical system, its information support and situation (external factors) that determine control subject's behavior and cause security violation of the railway, water, air and road transport21.
Along with the criminological concept of transport crime mechanism one should allocate its criminal law concept. In criminal law the theory postulated: crime harms public relations22. However, the mechanism of this impact on an object in literature is revealed differently. Relation to the same transport crimes it is actually marked only23.
Transport crime always harms public relations created around safety of the operation of railways, underground, aviation and etc. Naturally, if there is no violation of a legally protected object, if by changing social relations protected by criminal law no harm is done to the transport security, then there is no crime. So, some acts that cause deterioration of efficiency of transport do not constitute the crime considered, because in this case protected trouble-free operation of transport does not tolerate any damage.
Harm caused by transport crime is objectified in criminal consequences which are the expression of its public danger, it links an act with a subject. Therefore, a criminal consequence is a dangerous change happened as a result of the act in a particular feature of transport — its security.
Crime encroaching on trouble-free operation of the railways, underground, air force and navy,
20 In transport, particularly in aircraft, depending on frequency of occurrence the interval situations are subdivided into repetitive, moderately probable, hardly probable, extremely improbable, practically improbable (Sakach R., Zubkov B. Organization and ensuring of air traffic control. M., 1987; Goushin V. Safety of flights of aircraft apparatuses. Riga, 1979. № 3).
21 I. Gumerov offers to perceive mechanism of committing a traffic accident as a functional system, determining order of phase-by-phase change of negligent criminal activity. (Gumerov I.A. Mechanism of committing road accidents and major components of road traffic, providing its security. Kazan, 2004. P. 33).
22 In the theory of criminal law, the question about the nature of the object of criminal law protection and object of crime are disputable. The detailed enough analysis of the available data points of view is given by: Vinokurov V. Object of the crime: the methods of concretization, establishing and enshrining in the law. Krasnoyarsk, 2010. P. 56-105.
23 Belokobylsky N., Chuchaev A. Transport crime mechanism.
Saratov, 1991.
vehicles, actually causes material, physical, organizational and moral harm. From this position, in our opinion, Y. Permyakov makes a wrong conclusion. The recognition that a crime, in addition to violations of public relations, harms current social system of social norms as well, logically leads to presuming of one more object of crime situated beyond the line of public relations24.
One hardly can agree with that. The thing is that criminal consequences are not the last point of social harm25. Criminal law only marks possible consequences which it considers sufficient for availability of certain elements of a crime, leaving the other, «atypical», outside the legal construction.
E. Sukharev and A. Gorbuzov, conversely, were against the fact that crime causes harm to public relations. On their opinion, in reality nothing like this happens. Public relations can not be caused property damage, physical injury, or any other damage. Crime damages or even destroys any object that bears certain relationship. But in connection with the death of a man or destruction of the subject public relationships do not die and are not even damaged. «Natural objects and phenomena, and also people are transient — the authors write, — they appear, they are included in the existing system of social relations and are eliminated therefrom. The very same system of public relationship, stable with respect thereto, can not be changed as a result of illegal actions of particular individuals»26.
Property relations (theft object) remain unchanged regardless how many times has been theft committed and how much was stolen. This proves, in particular, such fact as the preservation of victim's property rights in respect of stolen property. Similarly, when body injury the relationships of inviolability of a person's health are not destroyed and broken, they continue to function and are protected by criminal law. Otherwise, after body injury the health of the victim would have been deprived of legal protection because scrapped or damaged relationships of health immunity would not exist.
Invalidity of E. Sukharev's and A. Gorbuzov's reasoning is in the following. First, the authors did not take into account the existing relationship hierarchy. Making inoperable a vehicle, for example, or railroads, a criminal effects not all public relations at once, but only those which are considered to be direct object of the crime. Later harm to public relations extends either as rings in the water or as a chain. Being «blocked» by the influence of crime, «a unit» of relationships loses its connection with the
24 Permyakov Y. On the mechanism of criminal influence on the system of public relations // Criminal responsibility and its implementation. Kuibyshev, 1985. P. 10-11.
25 Chuchaev A. Safety of rail, water and air transport. Penal problems. Saratov, 1988.
26 Sukharev E., Gorbuzov A. Traditional notions on the mechanism of criminal assault // Problems of improving the criminal law at the present stage. Sverdlovsk, 1985. P. 21.
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relative group or borderline relations. This leads to their disorganization and disruption. Thus, already a whole block of relations fails. Public relations, being system education, having an abnormally functioning element, also suffer more or less damage. They of course, do not die and are not destroyed. General volume remains unchanged; it is only in that or another extent loses its quality.
Furthermore, we must not forget that common object of crime itself does not either cover all public relations developing in the state. Criminal law protects only a fraction of what it available, based on the importance of the relationship, ineffectiveness of other legal protection and other circumstances.
In relation to transport the said scheme is as follows. Criminal act violates public relations characterizing transport safety, its trouble-free operation. These relationships are included in a specific kind of relationships, which are part of such relations as public safety, and the latter — in the general totality, protected by the criminal law.
Shipwreck, destruction of an aircraft, etc. generally characterize the security industry, in other words, the state of public safety in the functioning of transport. The more often emergencies occur, the more often railway accident-free operation of roads, aviation, fleet, road traffic is disrupted, the more damaged «units» are covered by public safety as an aggregate relationship. Being affected in any extent as a result of a transport accident this aggregate can not provide normal operation of other public relations (on human security, property, state, etc.). As the system education, public safety in this case remain unchangeable but in the destabilized form.
What is the injury mechanism for the very public relations? Some scientists believe that they are violated directly or they there is a threat to cause them harm. L. Kruglikov, for example, supports this position27. However, in such a look at the mechanism it is not considered that the object of crime as a social relation is intangible. It is not available for direct exposure. Therefore, the mechanism may not be characterized by a direct violation of public relations.
Other criminologists consider harm done to the object of assault as «a violation, an abruption of corresponding public relationship, blocking its free development or its change in the direction contrary to its social destination»28. On this basis the term of consequences of crime is formulated. According to V. Kudryavtseva it is a «prescribed by the criminal legal norm material or immaterial harm caused by criminal action (or inaction) to the object of assault — legally protected public relations and their members»29. Thus, the author distinguishes the
27 Kruglikov L. Serious consequences as circumstances aggravating the liability // Sov. justice. 1976. № 9. P. 13.
28 Kudryavtsev V. The objective side of offense. M., 1960. P. 134.
29 Ibidem. P. 137.
public attitude and its participants, in other words, subjects — bearers of these relationships, considering them the same order categories, and it is difficult to accept.
According to the point of view of J. Permjakova, it is possible to do harm to an object on three main directions (note that the author does not distinguish additional directions). First, a criminal offense may directly hinder the performance of any social useful functions by members of the society; Secondly, a criminal act may deprive society of any material prerequisites of existence; thirdly, a criminal act prevents the process of reproduction of socially approved activity forms30.
The author proceeds from the cultural approach to explaining the mechanism of criminal influence on social relations. Such solution, unfortunately, did not outline new methods to clarify the ways of violations of common system of social relations, protected by criminal law. Besides, it raises many questions. In particular, when allocating an object as common to all crimes as culture its relations with other objects remain unclear, its role in the resolution of many criminal law problems (e.g., qualification of the offense) is not clear. The main thing is that this approach, as it seems to us, does not disclose the mechanism of violations of specific public relations. However, not knowing how the harm to constituent elements is done, one can hardly explain this as a whole.
Public relations are generally characterized as the relationship between people, in whatever form they are embodied. The very existence of a human as an individual is possible only within a certain system of social relations.
Being a complicated structural form, public relations include a number of elements: first, the subjects (participants of relations) — person, society, state; Second, the relationship between subjects, their activities or positions relative to each other, certain rights and responsibilities; thirdly, social values around which public relations appear (subject of relations).
Transport operation safety (accident-free driving or operating) on its content includes complex characteristics of the train, water, air and road transport defining integrative ability to perform shipments of passengers and cargo without any threat for the human life, damage (destruction) of the property31.
30 Permyakov Y. Idem. P. 13-14.
31 For example, in Art. 2 of the Federal Law of 10 December 1995 № 196-FZ (edited on July 28, 2012) «On the Road Traffic Safety» concept of safety is defined as «the state of the process reflecting degree of protection of its members from the road accidents and their consequences» // Legislation bulletin of the Russian Federation. 1995. № 50. P. 4873; 2012. № 31. P. 4320. In Art. 2 of the Federal Act of January 10, 2003 17-FZ (edited on 28 July 2007), «On Railway Transport ofthe Russian Federation» it is said: «Traffic Safety and operation of the railway transport is a condition of protection of the process of the railway rolling
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In the structure of the evolving relationship first of all it is necessary to distinguish the subject, about which they occur. As such, in the present case, based on the content of criminal law rules first, we can name rail, air, maritime and inland waterway transport, metro (Article 263 of the Criminal Code); secondly, car, tram and other mechanical vehicle (Article 264 of the Criminal Code). These items determine the nature of public relations.
In the sphere of transport operation security as subject of relations can not be named social values such as life and health of people, property, etc. If, for instance, a person attempts on the life or health of the victim, using a vehicle, thereby other public relationship — security of person- is violated. You can not also qualify as transport crime an assault aimed at the embezzlement or destruction of property, even though this property is owned by transport organizations or a citizen (except for acts directly related by law to crimes against transport safety). In this case the impact is also aimed at the core of other relations, therefore such acts are not related to transport offenses but to infringements against property.
Subject as an element of public relations on transport safety, on the one hand, are enterprises, organizations, institutions, as well as citizens, and not only those who are made with the transport organization contract of carriage, but also any other person who is not in legal relations with it. The specificity of mentioned relationships is also in that their subjects can be general public. On the other hand, the subject of relationship is the transport organization — the owner of vehicles and transport infrastructure.
Guilty of committing a crime, the causes harm to an object by direct exposure to the elements of relations32. But the feature of transport crime assumes an impact not on any element but only on two of them: object of relations and activities. In practice one can find both cases. Destroying, damaging or causing by any other way the improper operation condition for the vehicle, railway, means of signalization or communication facilities, any other transport equipment, the guilty thereby violates the subject of the relations — transport security. Attitude of a person to the transport security provi-
stock and rolling stock itself where there is no unacceptable risk of accidents and their consequences, entailing harm to life or health of citizens, environmental damage, property of natural or legal persons» // Legislation bulletin of the Russian Federation. 2003. № 2. P. 169; 2012. № 25. P. 3268. The concept of security of transport operation must be distinguished from the concept of transport security, which is defined as «a condition of protection of transport infrastructure and transport facilities from acts of unlawful interference» (paragraph 8 of Article 1 of the Federal Law on February 9, 2007 № 16-FZ (edited on 18, July 2007), «On Transport Security» // Legislation bulletin of the Russian Federation. 2007. № 7. P. 837; 2001. № 30 (Part 1).
32 In our opinion, the most successful and full to show it was N. Korzhansky (Korzhansky N. Object and subject of criminal law protection. M., 1980. P. 137).
sion doesn't matter in this case. Activities can also be violated only by a person obliged to implement it — a transport worker.
V. Filimonov, along with the known species of crimes objects proposes to allocate another formation of social relations, which are allegedly harmed by any crime. «These are public relations ensuring the safety of other public relations protected by criminal law — ... property, economic relations, public order, normal activities of the state apparatus and etc»33. The existence of this facility the author explains with the fact that each relations protected by criminal law is a social benefit which thereby becomes subject to more than one relationship. It is established between the state, from one side, and each individual person — from the other, it is created by the need of state to provide specific immunity types of social relations. The opportunity to refrain from public dangerous actions available for each person corresponds to it.
These relationships have their legal form. Thus, if the legal expression of property are the powers of possession, use and dispose of property, then legal expression of relations ensuring the safety of property are arising from the rules of criminal law obligations of a person to refrain from actions aimed to violate these powers, and the right of state to punish those who do not perform this duty. Thus, concludes V. Filimonov, every crime encroaches on two objects: for example, the theft of property — on property and safety. It seems that the allocation of the last object is methodologically incorrect. The error, from our point of view, is that to the level of the object are brought not the actual social relations available in the state, but, in essence, penal relations, appearing between the offender and the state in connection with the commission of a crime.
In summary, we can conclude: the transport crime mechanism is the way of violation of public relations protected by criminal law. It is not identical to the method of committing a crime as the feature of its objective side. The way of encroachment is nothing but a form of expression outside the criminal act (it can be characterized by a custom action as well). In other words, by way of crime is meant a set of techniques, methods, movements, using which the offender realizes his plan. Consequently, this concept is much narrower than transport crime mechanism in the criminal law sense, it covers only a portion thereof, and thus does not disclose the way of doing harm to the object of criminal law protection. And the offense mechanism shows how public relations recognized as an object of the crime are violated.
In criminological terms mechanism of crime discloses a method of causing social harm, which
33 Filimonov V. Object ofthe crime and criminal consequence // Actual legal questions on the fight against crime. Tomsk, 1988. P. 11-12.
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is not always identical to the volume and gravity of criminal law consequences.
Therefore, the main difference of considered concepts is as follows: 1) transport crime mechanism as a criminological concept is much broader than criminal law concept. It covers social and psychological phenomena, characterizes such relationship and interaction of elements of the ergatic system, which leads to the infringement of special feature of
References:
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Перевод И.А. Мартыненко, преп. кафедры англ. яз. № 2 Университета имени О.Е. Кутафина (МГЮА)
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