On the question of the criminal legal concept of an explosive device

Sushkin Nikolai Vladimirovich Chief Expert of ECC, Department of the Ministry of Internal Affairs of Russia for the Trans-Baikal Territory 672000, Russia, Zabaikalsky Krai, Chita, P. Osipenko str., 21 forensics75@yandex.ru Other publications by this author

One of the most important constitutional tasks of a right-wing state is to ensure the safety of citizens, the protection of their life and health, and personal inviolability. The main factors complicating the solution of this problem include the deterioration of the criminogenic situation, an increase in the crime rate, negative changes in its quantitative and qualitative indicators.

Violent crimes and crimes related to illicit trafficking in narcotic and psychotropic substances, weapons, ammunition, explosives and explosive devices have a special impact on the degree of protection of citizens.

The fight against all of these criminal manifestations has traditionally been given great attention, but crimes related to the illicit trafficking of explosives and explosive devices require a special approach from both law enforcement agencies in particular and the State as a whole.

The public danger of this type of crime is so great that in the National Security Strategy approved by Decree of the President of the Russian Federation dated 31.12.2015 No. 683, the activities of criminal organizations and groups, including transnational ones, related to illegal trafficking in weapons, ammunition, explosives, were identified as one of the main threats to state and public security ^{[1, p.3]}.

The reason for the increased public danger of acts related to the illegal trafficking of explosives and explosive devices is that such acts not only form an independent corpus delicti, but may also be prerequisites for the commission of other crimes, including violent ones, using these items as a tool. Thus, A.N. Gorbunov rightly argues that many serious crimes are committed on the territory of Russia with the use of weapons, ammunition, explosives and explosive devices, and, above all, those with a terrorist orientation, and violence with their use has turned into an instrument of pressure on the state executive authorities of various levels, intimidation of Russian residents, one one of the ways to eliminate competitors, resolve conflicts in the criminal environment ^{[2, p.144]}.

In addition, explosives and explosive devices themselves are objects of increased danger, and can cause explosions with human casualties even if the person who is the subject of their illegal trafficking had no intention of using them.

Thus, the fight against illicit trafficking in explosives and explosive devices is an essential tool for ensuring public and State security and requires appropriate scientific justification.

One of the methods of this struggle is criminal law regulation, which includes such measures as tougher penalties for illegal acquisition, transfer, sale, storage, transportation, transfer or carrying of explosives or explosive devices and improving the mechanisms of law enforcement practice. One of the landmark events in this area was the adoption of Federal Law No. 370-F3 of November 24, 2014 "On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation", which resulted in the allocation of illegal acquisition, transfer, sale, storage, transportation or carrying of explosives or explosive devices in a separate norm and the Criminal Code of the Russian Federation was supplemented by Article 222.1. The allocation of this special norm was the result of a change in the assessment of the degree of public danger of the subject of the crime, previously provided for in the general norm, and the required tightening of punishment for this act. 

The introduction of a special criminal law provision providing for liability for illegal acquisition, transfer, sale, storage, transportation or carrying of explosives or explosive devices quite logically required its judicial interpretation, which happened in 2019, when the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of 11.06.2019 amended the Resolution of the Plenum of the Supreme Court of the Russian Federation Dated 12.03.2002 No. 5 "On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices".

Meanwhile, despite the clarifications given by the Plenum of the Supreme Court of the Russian Federation concerning the qualification of illegal trafficking in explosives and explosive devices, there are many issues in law enforcement practice regarding the qualification of acts related to illegal trafficking in explosives and explosive devices, as well as some gaps in the existing judicial interpretation of Article 222.1 of the Criminal Code of the Russian Federation.

As the analysis of judicial and investigative practice in cases of illegal trafficking of explosives and explosive devices shows, criminal cases in most cases are initiated on the facts of their seizure during the implementation of operational search information and the identification of the person who committed the crime during the investigation does not cause much difficulty. Often the most acute problem of the qualification of the act and the process of proving guilt is the establishment of objective signs of a crime, namely the need to resolve the issue of attributing the seized substance or device to the subject of the crime provided for in Article 222.1 of the Criminal Code of the Russian Federation.

In the criminal law, the concept of explosives and explosive devices is given in Notes 1 and 2 to Article 222.1 of the Criminal Code of the Russian Federation. According to these notes, "explosives are chemical compounds or mixtures of substances capable of rapid self-propagating chemical transformation (explosion) under the influence of external influences... explosive devices are understood to be industrial or homemade products containing an explosive substance, functionally designed to produce an explosion and capable of explosion."

In the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 12, 2002 No. 5 "On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices", as an addition to similar concepts, an example of substances classified as explosives is given: "... These include: TNT, ammonites, plastites, elastites, gunpowder, etc ...", and the range of items related to explosive devices is narrowed: "Imitation pyrotechnic and lighting means do not belong to explosives and explosive devices ...", however, the very concept of imitation pyrotechnic and lighting means it is not disclosed in the text.

Also in the mentioned act of judicial interpretation there is a remark concerning the solution of the question of the relevance of the subject of the crime to the category of explosives and explosive devices: "... In cases where, in order to solve the question of whether weapons, ammunition, explosives or explosive devices are objects that a person illegally carried, stored, acquired, manufactured, sold or stolen, special knowledge is required, an examination is necessary in the case....".

Since explosives and explosive devices are a very specific subject of a crime, then, as a rule, the appointment of an examination is provided for by the forensic methodology for investigating this type of crime and it is advisable for each fact to identify acts related to illegal trafficking of explosives and explosive devices. As a rule, investigative actions carried out within the framework of criminal cases initiated on such facts imply the appointment of a forensic explosive expert examination that helps to establish objective signs of a crime. The subject of the explosive expertise is the complex of the circumstances of the case established in relation to explosives, explosive devices, ammunition and traces of their action ^{[3, p.59]}. The main question put to the examination for the purpose of assigning any material object to the category of explosive devices, regardless of its wording and style, carries the following semantic load: "Is the object submitted for examination an explosive device?".

To answer this question, the expert conducts a number of studies in order to identify the necessary signs of an explosive device and, if they are available and sufficient, gives a positive answer to the question posed. Meanwhile, in the course of expert examinations, in accordance with the requirements of Federal Law No. 73-FZ of May 31, 2001 "On State Forensic Expert activity in the Russian Federation", specialists with professional knowledge operate with categories accepted in the field of knowledge in which they act as an expert. Explosives experts are no exception to this rule and are guided by their special knowledge and rely on the methods and methodological recommendations recommended to them by the main expert institutions.

In this regard, as A.Yu. Fedorov and V.V. Gorov absolutely correctly noted, currently forensic explosives experts use mainly either forensic ballistic or military technical terms ^{[4, p. 88]}.

From an expert point of view, an explosive device is any device of industrial and homemade manufacture containing an explosive charge (explosive charge by analogy with ammunition), structurally designed and suitable for the production of an explosion, and the main criteria for classifying explosive objects of forensic research as objects of crime for explosive devices is the presence of an explosive charge, as well as the constructive purpose for explosion production. At the same time, for ammunition containing a bursting explosive charge, the presence or absence of a fuse does not matter ^{[5, p.116]}. The range of items that can be classified by an expert as explosive devices is very extensive — in addition to fuses, fuses and detonators, militant cartridges (a structurally designed explosive charge with a means of detonation), explosive charges placed in tightly closed volumes (cases), explosive packages and imitation means based on pyrotechnic and high-explosive charges, etc. ^{[5, p.117]}.

When comparing legislative and expert approaches to the concept of an explosive device, certain differences have been established concerning both the concept of an explosive device itself and the list of items that belong to the category of explosive devices. From the point of view of A.A. Kartavogo, such ambiguity in the use of the conceptual apparatus can lead to a misinterpretation by operatives, investigators, lawyers, judges of the results of explosive expertise and research and, as a consequence, the adoption of incorrect decisions in operational investigative and criminal procedural activities ^{[6, p.10]}. It is difficult to disagree with this statement, since indeed, as a result of such a discrepancy of concepts in investigative and judicial practice in cases of illegal trafficking of explosives and explosive devices, a number of problems of qualification of acts relating to the subject of the crime appear.

Firstly, as noted above, from an expert point of view, explosive devices include imitation and pyrotechnic devices that are not intended to hit a target, but have the design features of an explosive device - an explosive charge, a casing, a means of detonation (explosive packages, imitation cartridges, etc.), which are excluded from the list of explosive devices by the legislator. This leads to a lack of unity of law enforcement practice, up to the imposition of convictions by courts for the turnover of such imitation pyrotechnics. Thus, when interviewing employees of the Ministry of Internal Affairs of the Russian Federation from 27 regions of the Russian Federation specializing in combating illicit trafficking in explosives and explosive devices, it was found that in 22 regions, decisions are made on the facts of the seizure of cylindrical explosive packages, decisions are made to refuse to initiate criminal proceedings, criminal cases are initiated in 1 region, other decisions are made in 4 regions. At the same time, criminal cases are initiated despite the fact that cylindrical explosive packages for their intended purpose are pyrotechnic devices designed to simulate the explosion of various kinds of ammunition ^{[7, p.130]}, and from a legislative point of view are not explosive devices. In addition, the analysis of the practice of production of explosive examinations indicates that although explosive packages belong to pyrotechnic devices for military purposes and cannot be freely circulated among the population, the power of their explosion does not exceed the power of the explosion of many pyrotechnic means of entertainment that are in free circulation, and calls into question the need to recognize them as socially dangerous and the validity of the criminal prosecution of persons carrying out their storage. However, despite this, in judicial practice there are cases of convictions for the storage of cylindrical explosive packages, despite the fact that the area of their intended purpose was indicated in the expert opinion on which the prosecution was based (The verdict of the Krasnooktyabrsky District Court of Volgograd dated July 30, 2019 in case No. 1-314/2019).

On the other hand, there are a number of much more powerful imitation and pyrotechnic devices. Some of them (for example, IM-82, IM-105, IM-120 imitation cartridges and SHIRAS artillery shell bursting imitation checkers) are equipped with explosive charges and have a powerful damaging effect upon explosion ^{[8, p.10]}.

It is known that IM-82,107M imitation cartridges and SHIRAS-M imitation artillery shell bursts contain charges of a mixed high explosive based on TNT weighing 95 g and 120 g, respectively (the verdict of the Ust-Labinsk District Court of Krasnodar Krai dated November 5, 2013 in case No. 1-155/2013). This mass of the explosive charge is comparable to the mass of the charge of hand grenades and indicates that the inept handling of these imitation means and their intentional illegal use can lead to bodily injury due to the high-explosive and thermal effects of the explosion. This fact is confirmed by the safety requirements when using them, according to which the safe distance when the SHIRAS artillery shell explodes is at least 25 m, and when IM-82, IM-82,107M, IM-105, IM-120 imitation cartridges explode is at least 50 m [9 p. 38-39].

The above confirms the presence of signs of public danger of acts related to the turnover of some powerful imitation pyrotechnic devices, therefore, the validity of their complete exclusion from the category of explosive devices by the Supreme Court is questionable. To solve this problem, it is necessary to re-evaluate the degree of public danger of imitation pyrotechnic devices, taking into account the diversity of their nomenclature.

Secondly, in the currently existing version of the legislative concept of an explosive device, a device is explosive only if it has the ability to explode. At the same time, since there is no list of conditions under which it should be capable of explosion, it can be assumed that the ability to explode means the possibility of producing an explosion of the device in the manner prescribed by the design, that is, the availability of a workable means of initiating an explosion, or, in other words, means of detonation.

Indeed, in many industrial explosive devices, very stable and low-sensitivity explosives, for example, TNT, are used as charges. As is known, TNT is insensitive to shock, friction and thermal effects. Pressed and cast TNT from a shotgun bullet does not melt and does not catch fire, and the chemical resistance of TNT is very high ^{[10, p.14]}.

Proceeding from this, the ability to explode any body of an explosive device equipped with TNT or other low-sensitivity explosive substance that does not have a means of detonation, for example, the body of a hand grenade without a fuse, under normal conditions is under great question. This makes it possible, due to the lack of clear terminology from a legal point of view, to question its relevance to the category of explosive devices. Nevertheless, as noted by leading experts in the field of forensic explosives, the establishment of the purpose of the object as a means for the production of an explosion (explosive device) can be based on the analysis of a set of design features (the presence of the organization of crushing of the body, ignition holes, a point for a fuse, ready-made striking elements, etc.), and often, the detonation of an explosive device it is also possible without a special structural element (means of detonation) due to external factors - heating, mechanical action, etc. (Letter of the ECC of the Ministry of Internal Affairs of Russia "On changes in the Criminal Code of the Russian Federation", ex. No. 37/20-4279 dated 06.07.2015.). This fact indicates the possibility of an explosion, not even when using an explosive device, but in the process of carrying out any other manipulations with it (horseradish, transportation, etc.) and confirms the public danger of trafficking in objects containing explosives, but without means of detonation.

In such a situation, it seems that, despite the existing discrepancies with the regulatory framework, the concept of an explosive device used in expert activity and the criteria for classifying the object of expert research as explosive devices fully meet modern requirements and are in accordance with the degree of public danger of the alleged subject of the crime.

At the same time, the lack of legislative consolidation of the signs and conditions of the ability of an explosive device to explode may lead to an erroneous, selective and arbitrary interpretation of Article 222.1 of the Criminal Code of the Russian Federation, or delay the consideration of the case in court due to the need to obtain clarification from specialists in the field of forensic explosives, and thereby violate the principles of objectivity of the criminal law and the conduct of legal proceedings within a reasonable time. This is categorically unacceptable and determines the expediency of changing the legislative approach to the concept of an explosive device.

Thus, in the course of the study, the following topical problems of the theory and practice of the corpus delicti provided for in Article 222.1 of the Criminal Code of the Russian Federation were identified:

I. Exclusion from the list of explosive devices of imitation pyrotechnic devices containing explosive charges of sufficiently large mass, the explosion of which is sufficient for the occurrence of socially dangerous consequences in the form of harm to human health or death. In order to bring the measures of the criminal-legal fight against illegal trafficking of explosives and explosive devices in line with modern requirements, it is advisable to change the approach to assessing their public danger, for example, drawing up a list of imitation pyrotechnic devices that, by their technical characteristics and characteristics, pose a public danger and should be legally classified as explosive devices.

II. The absence of legislative consolidation of the signs and conditions of the explosive device's ability to explode, which, as noted above, may lead to an erroneous or selective and arbitrary interpretation of Article 222.1 of the Criminal Code of the Russian Federation. This problem can be solved by bringing the legislative concept of an explosive device in line with the expert one, which meets modern requirements, for example, by giving additional explanations to the Plenum of the Supreme Court of the Russian Federation outlining the concept of explosive devices in the following wording: "Explosive devices are understood as industrial or homemade products containing explosives, functionally designed to produce an explosion, capable of to an explosion, provided that there is a means of detonation or the influence of external factors in them. "

In any case, the solution of these problems is possible only through painstaking work to clarify the meaning and interpretation and subsequent clarification of Article 222.1 of the Criminal Code of the Russian Federation, including with the involvement of leading experts in the field of forensic explosives from various state forensic institutions. The expected result of this work is to eliminate the possibility of ambiguity in the interpretation of objective signs of a crime, to reduce the time for consideration of criminal cases on illegal trafficking of explosives and explosive devices in courts, to ensure the unity of judicial practice, and, as a result, to increase criminal legal protection.