Problems of the implementation of the principle of justice in the construction of sanctions norms of the Special part of the Criminal Code of the Russian Federation

Prostoserdov Mikhail Aleksandrovich PhD in Law Docent, the department of Criminal Law, Russian State University of Justice 117418, Russia, g. Moscow, ul. Novocheremushkinskaya Ul., 69, kab. 504 prosto_m_alex@mail.ru Other publications by this author

The principle of justice is enshrined in Article 5 of the Criminal Code of the Russian Federation: punishment and other measures of a criminal nature applied to a person who has committed a crime must be fair, that is, correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. No one can be criminally liable twice for the same crime.

In the science of criminal law, much attention is paid to the principle of justice.  "The criminal law principle of justice is an objective category based on the moral requirements imposed by society on the state authorities regarding the rights, freedoms, legitimate interests of the individual, society and the state" ^{[1, p.9]}. However, "the principle of justice is not always implemented in law-making activities, among the most common are violations in the processes of criminalization (decriminalization) and penalization (depenalization)" ^{[2, p.7]}.

B.V. Epifanov wrote that "taking into account the requirements of justice when choosing the optimal variant of criminal sanctions is a necessity" ^{[3, p.8]}.  O.Y. Bunin wrote in detail about the implementation of the principle of justice in the implementation of criminal law norms, in his opinion, "the necessary legislative conditions for the fair establishment of the types and sizes (terms) of punishments in the sanctions of criminal law norms are:

- compliance with the systematic sequence of establishing penalties in sanctions;

- consistency of types and sizes (terms) of punishments, taking into account the categories of severity of crimes;

- compliance with the possibility of fair application of sanctions to all categories of persons subject to criminal liability;

- taking into account the possible totality of crimes;

- establishment of intermediate types of punishments in alternative sanctions;

- establishment of a differentiated scale of judicial discretion" ^{[4, p.9-12]}.

The principle of justice is closely related to one of the most important goals of punishment: the restoration of social justice (Part 2 of Article 43 of the Criminal Code of the Russian Federation). Restoration of social justice, as K.V. Kalyuzhin points out, "is compensation for damage caused to an individual, society or the state by a committed crime, expressed in the form of a court–determined legal and socio-moral assessment of the actual circumstances of the crime and the identity of the perpetrator, in the appointment of a specific type and amount of punishment or other measures of a criminal nature, taking into account the general the beginning of sentencing and judicial discretion" ^{[5, p.9]}. However, as E.V. Yudin correctly notes, "the achievement of justice cannot depend for the most part on the discretion of the court, the law itself must contain the necessary guarantees for this" ^{[6, p.3-4]}. I. Kant in the Critique of Practical Reason wrote that "in every punishment, first of all, there must be there is justice, it is the essence of this concept" ^{[7, p.357]}.

In our opinion, the principle of justice is one of the most important criminal law principles in the construction of criminal law sanctions. The sanction must be fair both in itself and in its implementation. Each element of the sanction, whether it is the main or additional type of punishment, must be consistent with the principle of justice. The sanction cannot provide for unfair punishments within unfair limits that do not correspond to the degree of public danger of the crime, and the construction of the sanction cannot violate the principle of justice, only because of its legal and technical features, depriving the court of the possibility of imposing a fair punishment.  In order to implement the principle of justice, the sanction should contain only such punishments and only within such limits that correspond to the degree of public danger of the crime.

This correspondence can be established only by comparing the sanctions of related crimes that differ in any one feature.  If one composition differs from the second by an additional object, then the sanction of such composition should provide for stricter types of punishments, or similar types of punishments, but within greater limits than the sanction of a composition in which there is no additional object (see Articles 125 and 270 of the Criminal Code, Part 1 of Article 128.1 and Part 1 of Article 298.1 of the Criminal Code).  If an act in one composition is objectively more socially dangerous than in another, then this should be reflected in all elements of the sanction from the mildest to the intermediate and most severe type of punishment, including additional punishments and the level of alternative punishments (see Part 1 of Article 126 and Part 1 of Article 127 of the Criminal Code of the Russian Federation). The same conclusion can be drawn with respect to the sign of consequences (see Articles 111, 112, 115 of the Criminal Code), the method (see Articles 158, 159, 161 of the Criminal Code) and other signs of the corpus delicti.

The qualifying sign increases the degree of public danger of the crime as a whole, creating a new qualified composition, therefore, the sanction of the qualified composition should be stricter in everything than the sanction of the main composition (see Part 1 and Part 2 of Article 339 of the Criminal Code of the Russian Federation). A privileged attribute that reduces the degree of public danger should also significantly mitigate the sanction, just as the attribute itself mitigates the degree of public danger of a crime (see Part 1 of vol. 105 and Article 106 of the Criminal Code of the Russian Federation).  Identical sanctions are allowed for equivalent and equivalent crimes by the nature and degree of their public danger (see Articles 144.1 and 145 of the Criminal Code of the Russian Federation).

However, a thorough analysis of the current criminal law revealed controversial and ambiguous cases, which, in our opinion, can be called problems of implementing the principle of justice. So, unacceptable from the point of view of the principle of justice, in our opinion, is a situation in which the sanction of a complex composite composition of a crime (norm-whole) provides for milder types of punishments compared to the composition-part.

As an example, the sanctions of part one of Article 118 and part one of Article 263.1 of the Criminal Code of the Russian Federation can be cited.  The crime provided for in part one of Article 118 of the Criminal Code of the Russian Federation consists in causing serious harm to human health by negligence, while an identical consequence with an identical form of guilt is provided for in part one of Article 263.1 of the Criminal Code of the Russian Federation "Failure to comply with transport safety requirements", however, their sanctions differ significantly.

The sanction of the first part of Article 263.1 of the Criminal Code of the Russian Federation (norm-whole) is significantly softer than the sanction of the first part of Article 118 of the Criminal Code of the Russian Federation (norm-part). Thus, if the guilty person causes serious harm to health by negligence to the victim in a domestic manner (Part 1 of Article 118 of the Criminal Code of the Russian Federation), and not in violation of special requirements that he is obliged to comply with, then such a person may be given a more severe punishment, in the form of arrest or restriction of liberty for up to three years, while that the sanction of the first part of Article 263.1 of the Criminal Code of the Russian Federation provides for this punishment within up to one year.

In our opinion, the crime provided for in part one of Article 263.1 of the Criminal Code of the Russian Federation has a significantly greater degree of public danger than the crime provided for in part one of Article 118 of the Criminal Code of the Russian Federation, since it completely absorbs it and provides for two direct objects (the main direct - requirements for ensuring transport security at transport infrastructure facilities and vehicles; the main additional - human health), while the crime provided for in part one of Article 118 of the Criminal Code of the Russian Federation causes harm to only one object (human health).

A similar situation occurs in the sanctions of part two of Article 200.6, part four of Article 207, part one of Article 224, part two of Article 236, part two of Article 238, and part two of Article 248 of the Criminal Code of the Russian Federation. However, in some of the above examples, in addition to this discrepancy, one more thing is seen - the discrepancy between the specific type of punishment and the degree of public danger of the crime. 

So, unacceptable, in our opinion, is the establishment of a fine as the most lenient punishment, which is provided for by the current criminal law for crimes whose object is human life. Let's consider these examples.

The crime provided for in Part one of Article 109 of the Criminal Code of the Russian Federation contains the composition of causing death by negligence (norm-part), and the crimes provided for in part two of Article 200.6, part two of Article 238 of the Criminal Code, part two of Article 248 of the Criminal Code of the Russian Federation (norm-whole) provide for causing death to a person by negligence as one of the alternative consequences and they completely absorb the corpus delicti of the first part of Article 109 of the Criminal Code of the Russian Federation.

The sanction of the norm-part (Part 1 of Article 109 of the Criminal Code of the Russian Federation) provides for correctional labor as the mildest type of punishment, while the sanction of the norm-whole (Part 2 of Article 248 of the Criminal Code of the Russian Federation) provides for mandatory work as the mildest type of punishment, and in the sanctions of part two of Article 200.6 and part two of Article 238 The Criminal Code of the Russian Federation - a fine.  This circumstance, in our opinion, also violates the principle of justice, since the sanction incorrectly takes into account the degree of public danger of the crime.

With regard to the first part of Article 200.6 of the Criminal Code of the Russian Federation, this discrepancy cannot be justified by increasing the maximum limit of the most severe type of punishment in the form of imprisonment from two to three years, since such punishment is non-universal.  So, for example, if the crime provided for in part one of Article 200.6 and part one of Article 109 of the Criminal Code of the Russian Federation is committed for the first time by two identical people without aggravating circumstances, then for the first person the only type of punishment that can be imposed will be a fine, since imprisonment and forced labor under such circumstances are not assigned by virtue of part one of Article 56 of the Criminal Code of the Russian Federation. At the same time, correctional labor will remain the mildest form of punishment for the second person.

In relation to the second part of Article 238 of the Criminal Code of the Russian Federation, this mechanism of sentencing is not applied, since such a crime belongs to the category of serious. Nevertheless, this sanction allows for the possibility of imposing a fine for causing death by negligence.

Human life is protected by the current criminal law in a particularly strict manner ^{[8, 29-30]}. Only for intentional crimes against life can the death penalty be imposed (Part 1 of Article 59 of the Criminal Code of the Russian Federation). Life imprisonment is also established for crimes against life (Part 1 of Article 57 of the Criminal Code of the Russian Federation). Thus, according to this criterion, a person's life is above all other objects in the pyramid of values of objects of criminal law protection.

A fine is the mildest of the main types of punishment ^{[9, pp. 105-110]}. In this vein, the establishment of a fine for crimes, the object of which is a person's life, resembles a "vira" - a fine in Kievan Rus, levied in favor of the prince from the murderer or community ^{[10, p.308]}. Many works have been written about "vira" in the science of criminal law, but all the works say that "vira" has remained in the history of criminal law ^{[11, pp.232-234]}. In the current criminal law, the penalty for intentional crimes against life is not established at all ^{[12, pp.83-87]}, however, as it was shown earlier, it is in the sanctions of some careless crimes.

In our opinion, the refusal to establish a fine in the sanctions for crimes against life will emphasize the value and significance of this object, while its presence in such sanctions may violate the principle of justice.

In this context, the sanctions of Article 224 of the Criminal Code of the Russian Federation should be considered separately when compared with the sanctions of part one of Article 109 of the Criminal Code of the Russian Federation. The act provided for in Article 224 of the Criminal Code of the Russian Federation "Negligent possession of firearms" is also a reckless crime, where an additional object of criminal law protection is life, but part one of this article also provides for a fine as the main type of punishment.

The sanctions of Article 224 of the Criminal Code of the Russian Federation, both in part one and in part two, are milder than the sanctions of part one of Article 109 of the Criminal Code of the Russian Federation. This is manifested both in the presence of a fine in the sanction of the first part of Article 224 of the Criminal Code of the Russian Federation as the mildest type of punishment, and in all other types of punishments, including intermediate and the most severe type. The sanction of the first part of Article 224 of the Criminal Code of the Russian Federation is milder in everything than the sanction of the first part of Article 109 of the Criminal Code of the Russian Federation, although they both provide for the death of a person as socially dangerous consequences. Also note that the sanction of the second part of Article 224 of the Criminal Code of the Russian Federation is also milder than the sanction of the first part of Article 109 of the Criminal Code of the Russian Federation, since it provides for mandatory work, which is not in the last sanction, despite the fact that the consequences in the second part of Article 224 of the Criminal Code are the death of two or more persons, and in the first part - the death of only one person.

It seems that this mitigation may still take place, since the composition of the crime provided for in Article 224 of the Criminal Code of the Russian Federation has features in the causal relationship.  If, as part of Article 109 of the Criminal Code of the Russian Federation, death occurred directly as a result of the actions (inaction) of the perpetrator, then as part of Article 224 of the Criminal Code of the Russian Federation, the inaction of the perpetrator consisted in negligent storage of weapons, as a result of which conditions were created for its use by third parties. Death, as a socially dangerous consequence, has already occurred as a result of the actions of these third parties. Negligence, as a form of guilt, in this case lies precisely in the fact that the perpetrator did not foresee the death of a person as a result of the actions of third parties, although with due care and foresight he could and should have foreseen it (see Part 3 of Article 26 of the Criminal Code of the Russian Federation).

Thus, taking into account the degree of public danger of the crime provided for in Article 224 of the Criminal Code of the Russian Federation, the actions of third parties are added, which are not included in Article 109 of the Criminal Code of the Russian Federation and which significantly affect the degree of public danger of the crime. Because of this, the sanction of the first part of Article 224 of the Criminal Code of the Russian Federation, in our opinion, may be milder than the sanction of the first part of Article 109 of the Criminal Code of the Russian Federation. At the same time, the composition of the first part of Article 224 of the Criminal Code of the Russian Federation cannot be fully called privileged in relation to the composition of the first part of Article 109 of the Criminal Code of the Russian Federation, since there is no privileged attribute in it - these are just two adjacent main elements of a crime with varying degrees of public danger, various immediate main objects and circumstances of the commission of a crime.

Nevertheless, an additional object in the composition of the crime provided for in Article 224 of the Criminal Code of the Russian Federation is still human life, and in our opinion, the degree of public danger of such a crime, due to the value of the object, does not allow to establish a fine as the main punishment. It seems that the fine should be excluded from the sanction of the first part of Article 224 of the Criminal Code of the Russian Federation, and all other types of punishments should be left unchanged.

In order to comply with the principle of fairness, it is also necessary to exclude a fine from all the sanctions of the norms, the object of which is human life (Part 2 of Article 200.6, Part 4 of Article 207, Part 1 of Article 224, part 2 of Article 236, Part 2 of Article 238 of the Criminal Code of the Russian Federation).

Another example of a violation of the principle of justice, in our opinion, is the establishment of different sanctions for one set of crimes with related acts and absolutely identical sanctions for other compositions with the same acts. As an example, we will give the sanctions of some crimes against sexual freedom and inviolability, namely the sanctions of the first part of Articles 131 and 132, as well as the sanctions of the first and second part of Article 134 of the Criminal Code of the Russian Federation.

It should be noted that many works in the science of criminal law have been devoted to the problems of constructing sanctions for sexual crimes, in particular, Y.E.Pudovochkin ^{[13, pp.64-76]}, A. S.Trubinskaya ^{[14, pp. 64-67]} wrote about this problem.

The sanctions of the first part of Article 131 and 132 of the Criminal Code of the Russian Federation are identical, and the compositions of these crimes are related and differ only by the sign of acts: "sexual intercourse" in the first part of Article 131 of the Criminal Code of the Russian Federation and "sodomy, lesbianism or other sexual acts" in the first part of Article 132 of the Criminal Code of the Russian Federation.

Similar acts are provided for in Parts one and two of Article 134 of the Criminal Code of the Russian Federation: sexual intercourse in part one, sodomy and lesbianism in part two.  The composition of the first part of Article 134 of the Criminal Code of the Russian Federation is mirrored to the composition of the second part of Article 134 of the Criminal Code, as well as the composition of the first part of Article 131 is mirrored to the composition of the first part of Article 131 of the Criminal Code. Considering this, as well as the fact that the sanctions of Part one of Article 131 and part one of Article 132 of the Criminal Code of the Russian Federation are identical, it could be assumed that the sanctions of parts one and two of Article 134 of the Criminal Code of the Russian Federation should also be identical. However, this is not the case, the sanctions of the first and second parts of Article 134 of the Criminal Code of the Russian Federation differ significantly.

The differences are both in the mildest types of punishments, and in intermediate punishments and in the maximum limits of the most severe punishment in the form of imprisonment. Thus, the act provided for in part one of Article 134 of the Criminal Code of the Russian Federation belongs to the category of crimes of moderate gravity, and the acts provided for in part two of this article are a serious crime. Moreover, the maximum limit of deprivation of liberty in the sanction of the second part of Article 134 of the Criminal Code of the Russian Federation coincides with the maximum limit of deprivation of liberty in the sanction of the first part of Article 132 of the Criminal Code of the Russian Federation, which is a violent crime ^{[15, pp.14-18]}.

Thus, if a young man of eighteen commits an act of nonviolent sodomy with a boy of fifteen, then what he has done should be recognized as a grave crime, but if the same young man commits nonviolent sexual intercourse with a girl of fourteen, then what he has done is covered by part one of Article 134 of the Criminal Code of the Russian Federation and is recognized as a crime of moderate gravity. At the same time, if the same young man applies violence to the victims, then both crimes become serious with the same penalties. In our opinion, this circumstance is evidence of non-uniform consideration of the degree of public danger of crimes in the construction of criminal sanctions.

The difference in the sanctions of Part one and Part two of Article 134 of the Criminal Code of the Russian Federation could be justified if the direct objects were different, for example, if there was an additional object in part two. But the objects of these compositions are also identical - the sexual inviolability of minors, and there are no additional objects ^{[16, pp. 97-101]}.  In our opinion, the sanction of the second part of Article 134 of the Criminal Code of the Russian Federation should be identical to the sanction of the first part of this article, which will not contradict the rules of legal technique, since both elements of these crimes are basic and do not relate to each other as basic and qualified.

Another problem related to the implementation of the principle of justice in the construction of criminal sanctions is the establishment of a lower limit of punishment in the form of imprisonment in the sanctions of reckless crimes. In total, there are nine such examples in the current criminal law: Part 2, Part 3 of Article 236, Part 1.2, Part 2.1 and Part 4 of Article 263, Part 4 of Article 263.1, Part 2, Part 4 and Part 6 of Article 264 of the Criminal Code of the Russian Federation.

Half of the above examples are sanctions of serious careless crimes (Part 4 and Part 6 of Article 264, Part 2.1 and Part 4 of Article 263 of the Criminal Code), the second half are sanctions of careless crimes of moderate severity (Part 2 and Part 3 of Article 236, Part 1.2 of Article 263, Part 4 of Article 263.1, part 2 of Article 264 Criminal Code of the Russian Federation) ^{[17, pp.18-26]}.

Negligence in assessing the social danger of a crime is definitely a less dangerous form of guilt compared to intent ^{[18, pp.108-115]}.  The sanctions of most intentional crimes do not provide for a lower limit of punishment in the form of imprisonment. However, in the above cases, despite the careless form of guilt, the legislator sets a lower limit for deprivation of liberty. At the same time, in two cases it is set for a period of eight years (Part 4 of Article 263, Part 6 of Article 264 of the Criminal Code), and in four for a period of five years (Part 3 of Article 236, Part 2.1 of Article 263, Part 4 of Article 263.1, part 4 of Article 264 of the Criminal Code). 

Thus, in part three of Article 236 of the Criminal Code, imprisonment is set at five to seven years, and in part four of Article 263.1 of the Criminal Code - from five to eight years, although both of these crimes, according to part three of Article 15 of the Criminal Code, are classified as crimes of medium gravity. It should be recalled that the maximum limit of punishment in the form of imprisonment in the sanctions of intentional crimes of moderate severity is five years, and in these sanctions, the lower limit of punishment is set in the same values, despite the fact that the crimes are negligent.

According to Article 6 of the Criminal Code of the Russian Federation, the punishment must correspond to the nature and degree of public danger of the crime. The form of guilt significantly affects the public danger of the crime, being one of the landmarks. Thus, an intentional crime cannot be punished milder than a careless one, and vice versa, the sanction of a careless crime cannot be stricter than the sanction of an intentional one.

Thus, the sanction of the fourth part of Article 263 of the Criminal Code of the Russian Federation provides for punishment in the form of imprisonment for a term of eight to fifteen years.  The crime provided for by the said norm is a violation of the rules of traffic safety and operation of railway, air, sea and inland waterway transport and metro, committed by a person in a state of intoxication, resulting in the death of two or more persons by negligence. In turn, the fourth part of Article 111 of the Criminal Code of the Russian Federation provides for criminal liability for intentional infliction of serious harm to health, which caused the death of the victim by negligence.  This crime refers to crimes with two forms of guilt, and, according to Article 27 of the Criminal Code of the Russian Federation, is generally recognized as intentional. Moreover, Article 111 of the Criminal Code of the Russian Federation provides for the considered totality and actually covers causing death to two or more persons ^{[19, p.89-93]}, which is confirmed by examples of judicial practice (see the Appellate Ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 29.12.2015 N 55-APU15-8). However, the sanction of the fourth part of Article 111 of the Criminal Code establishes imprisonment for up to 15 years and does not provide for a lower limit of punishment in principle.

Thus, the norm providing for criminal liability for the death of two or more persons by negligence provides for a lower limit of imprisonment of eight years, and the norm providing for criminal liability for the death of two or more persons with two forms of guilt (de jure intentionally) does not provide for a lower limit. Of course, in the above examples there is a difference in the categories of crimes (reckless serious, and intentional - especially serious). However, even if we take into account such a difference, in our opinion, the establishment of a lower limit of punishment in the form of imprisonment in the sanctions of reckless crimes is a violation of the principle of justice, since this does not correspond to the degree of public danger of the crime ^{[20, pp.151-154]}, manifested in the careless form of guilt.  Recall that the lower limit of imprisonment in the sanction of the first part of Article 105 of the Criminal Code of the Russian Federation "Murder" is from six years.

It seems that when designing sanctions for careless crimes, it is necessary first of all to assess the degree of public danger, based precisely on the careless form of guilt. Sanctions for reckless crimes, in our opinion, should not provide for lower limits of punishments.

Based on the above, it is necessary to draw the following conclusions.

1) The principle of fairness in the construction of sanctions of the norms of the Special Part of the Criminal Law consists in the systematic and uniform construction of sanctions, taking into account the nature and degree of public danger of the crime and the circumstances of its commission, both on the scale of the entire sanction and each of its elements.

2) In order to implement the principle of justice in the criminal law, the following theoretical foundations for the construction of sanctions are proposed:

- the sanctions of crimes identical in terms of public danger must be identical under identical circumstances of commission specified in the composition of the crime;

- the sanctions of the norms of the whole cannot provide for milder elements than the sanctions of the norms of the part;

- the sanctions of qualified elements of crimes cannot provide for milder elements than the sanctions of the main compositions (the same applies to the sanctions of specially qualified compositions in relation to the sanctions of simple qualified compositions);  

- the sanctions of privileged trains cannot contain elements more stringent than the sanctions of the main trains;

- the most lenient types of punishments, in particular a fine, cannot be used as a sanction when protecting the most valuable objects of criminal law protection, such as human life;

- the sanctions of careless crimes should be designed taking into account the degree of public danger based on the careless form of guilt and not to establish a lower limit of punishments in such sanctions.