No 1 (2022)

The construction of the Special Part of the Criminal Law is a topical issue for any state. The important task is to identify determinants influencing the structure and content of this component. The retrospective analysis of changes in the legislation allows identifying factors affecting the Special part of the criminal law, as well as the legislator’s response model in the context of changes in these factors. It makes it possible to use the existing experience to construct the Special part of the current Russian criminal code. The paper considers two types of determinants: socio-economic and political. For example, the author analyzes the Special part of the RSFSR Criminal Code of 1922. During the development and adoption of this law, significant transformations took place in the political and socio-economic life of Russian society: the system of government, the economic type, and social groups were changed. The paper presents the study of the influence of these processes on the structure and content of the Special Part of the RSFSR Criminal Code of 1922. The author focuses on the representation arrangement and content of legislative material, compares the statements of the Special part of the RSFSR Criminal Code of 1922 with the formerly existing and subsequent criminal legislation. The author concludes that the Special part of the criminal law socially and politically depends on the situation, in which this law is created. The influence of socio-economic and political factors on criminal law is inevitable. In some cases, the state tries to hastily regulate the changing social relations using criminal law means that is not always criminologically relevant and reasonable. It is necessary to carefully and reasonably consider changes in criminal legislation.

Preventive measures in the criminal procedure are the most stringent enforcement actions aimed at limiting constitutional human and civil rights and liberties, which causes greater attention to the issues of their legal regulation and application feasibility. The authors consider the concept and purposes of the preventive measures in the criminal procedure, analyze the preventive measures system, identify the tendencies to its amendment, and conclude on the necessity to reform the system of preventive measures in the criminal procedure. During the study, the authors analyzed the statements of Chapter 13 of the RF Criminal Procedure Code, as well as the contemporary scientific approaches to the understanding of the system and purposes of preventive measures in the criminal procedure. Following the results of the research and taking into account the study of law enforcement practice, the authors concluded that the preventive measures system is insufficient, which is expressed in the actual application of two measures of restraint only: a recognizance not to leave and detention, and in refusal to apply other restrictive measures due to their ineffectiveness or lack of technical feasibility for their application. The analysis of legislation in terms of regulating the procedure for the application of the preventive measures allowed formulating several proposals for improving the norms of the criminal procedure legislation of the Russian Federation aimed at increasing the efficiency of their application: to enshrine the definition of preventive measures in the RF Criminal Procedure Code; to expand the list of restrictions when applying preventive measures not related to the limitation of the freedom; to exclude personal surety, supervision of an accused minor, observation of the military unit command, and the restraining order from the list of preventive measures.

In 2013, based on Federal law No. 23-FZ, part 1 of Art. 144 of the RF Criminal Procedure Code was amended: it became allowed to carry out various procedural, investigative, and other actions; to explain to the participants of these actions their rights; to consider information obtained when examining crime reports as evidence. These amendments both considerably influenced understanding of the very beginning of a criminal case initiation and produced significant problems in collecting, checking, and assessing evidence as the structural elements of the proof process. The theoretical study shows that having the right to carry out procedural, investigative, and other activities at the stage of initiating a criminal case enshrined, the legislator omitted two very significant aspects. The first one is the absence of possibility to perform some actions in the order established by the RF Criminal Procedure Code as the procedure of such actions, for instance, getting the explanations, seizure of documents and things, is not regulated in any way by the RF Criminal Procedure Code. The actions regulated by the RF Criminal Procedure Code (forensic investigation appointment, examination, etc.) can be performed only within the frame of an initiated criminal case. The second one is that the expanded capabilities of investigation authorities at the stage of the criminal case initiation dissolved the boundaries between the preliminary investigation stage and the stage of initiating a criminal case actually turning the stage of initiating a criminal case into the “investigation imitation” carried out apart from the criminal procedure principles specified for the investigation.