Jus strictum

Abstract: Problem. The absence of a comparative analysis of all four editions of the Code of 1845 (1845, 1857, 1866, 1885) with respect to the subject of a crime prevents the determination of the actual evolution of age criteria and the rules of imputability, as a result of which many doctrinal provisions on continuity remain unverified. Aim. To identify and systematise the legal constructs of the subject of a crime (age, imputability, liability of legal entities) in the Code of 1845 (taking into account the editions of 1857, 1866, and 1885) and the Code of 1903. Methods. Analysis of the official texts of the Codes of 1845 (editions of 1857, 1866, 1885) and the Code of 1903, employing the comparative legal method. Results. The experience of forming the doctrine of the subject of a crime in the Russian Empire is summarised. The historical-legal study covers the theory and legislation of the first half of the 19th – early 20th centuries: from the first reforms of the reign of Nicholas I Romanov and Alexander II Romanov to the draft Criminal Code of 1903, revealing the development of criminal-legal thought on the subject of a crime. The Code of 1845 legislatively established the age gradation of criminal liability, but did not yet know the institution of developmental immaturity in the modern sense (exemption from liability due to failure to reach a certain age). For the first time, the concept of developmental immaturity was introduced by the Code of 1903 (Article 39). At the same time, pre-revolutionary criminal-legal doctrine and legislation (the Codes of 1845 and 1903) contained a multi-level differentiation of the age of criminal liability and distinguished two types of non-imputability (insanity and developmental immaturity), and allowed limited property liability of legal entities without violating the principle of personal guilt. Conclusions. The minimum age of criminal liability was raised from 7 to 10 years (in the 1885 edition), and the limited property liability of collective entities (Code of 1845) did not contradict the principle of personal guilt. The dynamics of age thresholds and imputability criteria across editions have been established. These findings may be used to clarify Articles 19–23 of the Criminal Code of the Russian Federation with respect to developmental immaturity and liability of legal entities.

Abstract: The institution of returning a criminal case to the prosecutor was introduced by the legislator into the Criminal Procedure Code of the Russian Federation for the purpose of eliminating procedural (unrelated to the collection of evidence) violations of criminal procedure law committed in pretrial proceedings, which preclude the possibility of considering the criminal case. However, numerous amendments to Article 237 of the Criminal Procedure Code of the Russian Federation have legitimised judicial interference in the investigation process, contrary to the principle of adversarial proceedings. Employing dialectical, systemic, and formal-legal methods, the author analyses the change in judicial practice approaches to the application of the institution of returning a criminal case to the prosecutor. The author demonstrates that the institution under consideration a) was created to shield the court from performing functions not inherent to it; b) is applied contrary to its intended purpose; and (c) operates in contradiction to the principles of the presumption of innocence and adversarial proceedings. The study showed that the institution of returning a criminal case to the prosecutor is applied by judges as a means of directing the procedural activities of criminal prosecution bodies, through which the judge not only manages pretrial proceedings but also initiates and directs prosecutorial activity, which results in the supplementation of deficiencies in the preliminary investigation and the change of charges to more serious ones. However, such activity of the court diverges from the objective that pursued the legislator when replacing the institution of returning the case for additional investigation with the institution of returning the case for the elimination of obstacles to its consideration by the court. The author concludes that the powers of the court, as well as the criminal procedural mechanisms applied by the court, should be analysed based on the idea of the presumption of innocence, and the further improvement of criminal procedure should follow the path of organising the criminal procedural activity of the court on the basis of the presumption of innocence.