Comparative Analysis of Crimes Provided for in Articles 110.1 and 151.2 of the Criminal Code of the Russian Federation

Ivashchenko Violetta Vladislavovna Postgraduate, Department of Criminal law and Criminal Procedure Law, Institute of Law, North-Caucasus Federal University 355000, Russia, Stavropol Territory, Stavropol, Pushkin str., 1 violetta2204@yandex.ru Other publications by this author

The real achievement of modern civilization is the right of a child guaranteed by the world community to favorable conditions for his physical, moral and mental development ^[17], as well as ensuring security from criminal and other encroachments. It is not for nothing that today crimes, the object of which is the normal social and moral formation of a minor's personality, his life and health, are the most serious and strictly punishable.

All this causes the legislator to pay special attention to improving the legal regulation of criminal liability for crimes against minors, as well as to forecasting the main trends in the development of criminal activity in this area in conditions of high dynamics of the development of public relations and modernization of all spheres of life.

The increase in the number of teenagers involved via the Internet in committing offenses and crimes, as well as actions that pose a danger to their life and health, including the formation of suicidal behavior in children, contributed to the actualization of this problem, caused a wide public outcry and revealed insurmountable gaps in domestic legislation.

In the general theory of criminal law, the crimes provided for in Articles 150, 151, 151.2 of the Criminal Code of the Russian Federation are considered by researchers as related due to not only a single history of their development and formation on the pages of modern criminal law, but also a large number of signs that similarly characterize these elements of crime.

It should begin with the fact that these crimes are united by a specific object. Thus, their existence in the Criminal Code of the Russian Federation is conditioned by the need to protect the institution of the family and are associated with ensuring the normal physical and moral development of young children and adolescents.

As you know, the problem of involving underage teenagers in committing antisocial acts or actions dangerous to their life and health has deep historical, legal and socio-economic roots and is more related to the dramatic changes in domestic policy taking place in the state and society over the past decades. Among the factors contributing to the involvement of minors in criminal and antisocial activities (an increase in the number of crimes in this category), the following are distinguished:

1) class stratification of society, the absence of an official place of work and legal earnings for part of the population, which contributes to the formation of a loyal attitude to antisocial and even criminal behavior (further, such a way of thinking is broadcast to minors in the process of their upbringing and growing up in a marginal environment) (socio-economic factor);

2) declarative nature of laws in the field of prevention and prevention of neglect and the commission of crimes of this category and the lack of effective mechanisms for their implementation; low level of legal culture and literacy of representatives of the "disadvantaged" stratum of the population, their inability to take advantage of measures of state social support and protection (political and legal factor) ^{[6, p. 259]}.

In addition, an obvious problem hindering the effective fight against this category of crimes is the underestimation of the real public danger of criminal acts by law enforcement officials. Based on the judicial and investigative practice, it is obvious that these crimes are not among the most frequently committed not only in our country, but also in the world ^[16]. This situation is connected, among other things, with the fact that the majority of law enforcement officials authorized to consider cases involving minors in committing crimes and antisocial actions, these elements of crimes are perceived as insignificant ^[10].

Antisocial behavior is a motivated volitional action, which is often selective in nature ^{[6, p. 260]}, i.e. it is committed for some reason and is expressed in a certain form, namely through the systematic use of alcoholic beverages, the consumption of intoxicating substances, as well as involvement in vagrancy or begging.

Turning to the analysis of the crime enshrined in Article 151.2 of the Criminal Code of the Russian Federation, it is necessary to say a few words about the social conditionality of its occurrence on the pages of domestic criminal legislation.

With the adoption of Federal Law No. 120-FZ of June 07, 2017 ^[12] and No. 248-FZ of July 29, 2017 ^[13], the elements of crimes provided for in Articles 110.1, 110.2, 151.2 of the Criminal Code of the Russian Federation were included in the system of the Criminal Code of the Russian Federation. The reason for the emergence of such a legislative initiative was a surge in youth and adolescent suicides.

During the period of 2015, 4,350 deaths of citizens aged 15 to 19 years were documented, 1968 – from 10 to 14 years, in 461 cases teenagers committed suicide ^[4]. According to the Investigative Committee of Russia, 720 children died as a result of suicide in 2016, which is 57% of the same period last year, in 2018 – 788 (+14%) ^{[2, 9]}.

Despite such impressive quantitative indicators, the data of the Judicial Department at the Supreme Court of the Russian Federation indicate that in 2018 only 4 persons were convicted under Article 110.1 of the Criminal Code of the Russian Federation, 2019 – 5, 2020 – 2, 2021 – 4, according to the results of 6 months of 2022, according to the article under consideration, the investigation of criminal cases in in relation to 5 people ^[14]. It is obvious that such a number of completed productions does not correlate with the number of registered deaths.

It was found that one of the reasons for the increase in the number of suicides among minors was the popularity of the so-called "death groups" on the VKontakte social network, where teenagers were invited to play dangerous suicidal games. The target audience of online communities has become mentally and emotionally unstable teenagers, prone to outside influence, self-flagellation and self-mutilation. Such children, as a rule, were distinguished by isolation, suffered attacks from peers, needed social recognition, felt a lack of parental attention and care. Through participation in the "games", they sought to attract attention to themselves, to become part of a team of like-minded people.

The administrators of these groups called for the commission of mass acts of suicide ^[5]. If at the last moment the victim refused to commit suicide due to fear or for other reasons, the curator exerted psychological pressure by threatening to spread information about the teenager's personal life, harming the life and health of his parents and relatives, blackmail, etc.

The horrific nature of the activities of the creators of such groups on the Internet has led to the obvious need for retaliatory human rights measures and the emergence of a legislative initiative. A high degree of social conditionality against the background of public outcry has become, in a way, an impetus for the legislator to adopt amendments to the Criminal Code of the Russian Federation as soon as possible. So the criminal law regulated specific forms of deviant criminal behavior.

Considering the dynamics of the processes of globalization and informatization of society, erasing any state borders, as well as the development of the Internet and the emergence of dozens of social networks, streaming platforms (services on which users post video content and broadcast it to their audience or carry out streaming in online format) and messengers (services for instant messaging, photos and etc.), broadcasting content from one corner of the world to another online, new forms of extreme entertainment with great speed and ease take possession of the consciousness of the masses, and especially minors. Any new types of games or active pastime are gaining popularity among the younger generation at a rapid pace, becoming "mainstream" (the prevailing trend, the main trend in any field) and a kind of label that determines how much a teenager is "in trend".

Since the control of information and the protection of adolescents from the harmful effects that encourage immature minds to take actions involving a risk to their lives always go hand in hand, the legislator quite justifiably provided for the introduction of these amendments to the Criminal Code of the Russian Federation of a crime providing for criminal liability for involving minors in actions dangerous to their life and health (Article 151.2 Criminal Code of the Russian Federation).

According to the explanatory note to Bill No. 118634-7, 253 teenagers suffered in 2016 as a result of engaging in "dangerous games", 117 cases ended in death, which is 18% more than in the same period of the previous year (99) ^[9]. At the same time, from 2018 (the date of adoption of amendments to the Criminal Code of the Russian Federation) to the 1st half of 2022, only 2 people were convicted under the main article (in 2018 and the 1st half of 2022), according to the additional 2 (in 2020) ^[14]. Obviously, this does not correlate with the information given in the explanatory note in support of the need to introduce criminal liability for involving minors in dangerous actions. Does this indicate that the forecasts of domestic criminologists and deputies of the State Duma of the Russian Federation are erroneous?

Rather no than yes, especially considering that a lot of materials of procedural checks on these facts end with a decision to refuse to initiate criminal proceedings due to the absence of corpus delicti and are documented as accidents. In this regard, there are grounds to fairly judge the high degree of latency of this type of crime.

Despite the fact that the main reason for the adoption of amendments to the Criminal Code of the Russian Federation was the increase in the number of teenage suicides committed under the illegal supervision of the administrators of "death groups", the dispositions of the main elements of crimes provided for in Parts 1 and 2 of Article 110.1 of the Criminal Code of the Russian Federation do not contain a special indication of the age characteristics of the victim as a qualifying feature. Criminal liability for the commission of these criminal acts against a minor is provided for in paragraph "a" of Part 3 of Article 110.1 of the Criminal Code of the Russian Federation.

Considering that the focus of this work involves the analysis of crimes committed against persons under the age of 18, we will focus on the differentiation of crimes provided for in paragraph "a" of Part 3 of Article 110.1 (qualified personnel) and Article 151.2 of the Criminal Code of the Russian Federation (the main composition).

The immediate objects of the crimes we are interested in correlate with each other. Thus, in the act provided for in paragraph "a" of Part 3 of Article 110.1 of the Criminal Code, the main direct object is the life and health of the child, and an additional one is the moral well–being of minors and the family. The object of Article 151.2 of the Criminal Code of the Russian Federation is public relations related to the well-being of children and adolescents, the protection of their rights and interests in general.

Thus, the optional object of the first crime (paragraph "a" of Part 3 of Article 110.1 of the Criminal Code) coincides with the main direct object of the second (Part 1 of Article 151.2 of the Criminal Code) and vice versa – life and health as an object of crime in the first case is the main one, and in the thief – accompanies.

The victim of both crimes is a minor who, by virtue of his social, mental, physical and moral development, realizes the meaning of the actions in which he is involved.

Although these acts do not formally contain the "starting" age of the victim as a legal sign, there is unity in understanding that the person involved (inclined) by virtue of his individual characteristics, intelligence, upbringing, physical and mental health should be aware of both the actual nature of the actions to which he is attracted, and the possible consequences of such actions. actions for yourself and others.

The victim of these crimes cannot be a person who, due to his infancy, mental or physical immaturity, as well as illness, does not understand the essence of the activity to which he is being persuaded (involved). In such cases, the actions of the "mentor" will be qualified according to paragraph "c" of Part 2 of Article 105 of the Criminal Code, paragraph "b" of Part 2 of Article 111 of the Criminal Code, etc., depending on the mechanism, nature and consequences of the actions performed.

Let's pay attention to the obvious similarity of the formulations describing the acts in question (the objective side).

Firstly, etymologically and from the standpoint of official interpretations ^{[7, 8]}, the concepts of "involvement" and "declension" are synonymous, identical. Secondly, as in the composition of involvement in the commission of illegal actions that obviously pose a danger to the life of a minor for the perpetrator, and in the composition of inducement or assistance to commit suicide of a teenager, the signs of the objective side are interpreted through signs of forms of complicity – incitement and aiding.

Thus, we can conclude that the nature of the criminal actions (acts) committed in both cases have not only a similar legal nature, but also a formal construction.

The methods of committing the crimes in question are correlated in a similar way. It is worth saying that in paragraph a of Part 3 of Article 110.1 of the Criminal Code of the Russian Federation, the legislator still assumes a more "soft" impact on the consciousness of the victim, since in many respects, according to the "violent – nonviolent" nature of manipulation, there is a differentiation of crimes provided for in Articles 110 and 110.1 of the Criminal Code of the Russian Federation. At the same time, the presence of the phrase "in another way" in the crimes under consideration actually indicates the possibility of their commission in any way, both violent and non-violent.

If we look at the disposition of Part 1 of Article 151.2 of the Criminal Code of the Russian Federation (based on the literal interpretation of its provisions), for the qualification of actions on the grounds of the specified corpus delicti, the combined presence of two conditions is necessary: 1) the illegal nature of the acts in which a teenager is involved; 2) the commission of such actions (inaction) by a minor should entail a risk to his health and life, that is, be potentially dangerous for the child ^[11].

Taking into account modern trends in society, the development of technology and social progress in general, as a rule, actions dangerous to the life and health of a teenager include: rooting (climbing on the roofs of houses), hooking (driving outside trains), stalking (exploring abandoned buildings and structures), digging (exploring underground objects), various "dangerous games" ("run or die" - crossing a busy highway; "dog buzz" - short-term strangulation in order to cause a semi-fainting state in a teenager), bungee jumping (jumping from high-rise structures with an elastic rope), skydiving, dangerous forms of parkour (overcoming obstacles of urban space), skywalking (conquering the highest points in the city without insurance), etc.

However, not all of the above "activities" are illegal. Thus, qualification under Article 151.2 of the Criminal Code of the Russian Federation is definitely subject to, for example, crossing a busy section of road by a teenager, since such behavior contradicts paragraph 4.3 of the Traffic Rules approved by the Decree of the Government of the Russian Federation No. 1090 dated 10/23/1993, according to which pedestrians must cross the road at pedestrian crossings, including underground and aboveground, and in their absence – at intersections along the sidewalks or roadsides.

The administrative ban on engaging in diggery is set out in Part 2 of Article 20.17 of the Administrative Code of the Russian Federation, according to the provisions of which unauthorized entry into an underground protected object entails the imposition of an administrative fine or arrest. It should also be considered illegal actions that do not entail legal liability directly, but violate safety requirements (for example, the minimum height of a parachute jump should be at least 800 m, when organizing bungee jumping rides, the equipment used is subject to regular inspection and certification, its characteristics must meet the requirements of international and domestic standards).

As N.V. Shchetinina rightly notes, it seems that for the qualification of "rufing" or "dog buzz" on the grounds of Article 151.2 of the Criminal Code of the Russian Federation, the existence of a legal ban on the commission of these actions in regional or federal legislation is necessary ^[15].

At the same time, judicial and investigative practice suggests the opposite.

So, by the verdict of the Kuznetsky District Court of the Penza region, an 18-year-old (at the time of 2018) resident of Kuznetsk was found guilty, who, being at her place of residence, persuaded her 16-year-old minor friend to consume (inhale) gas (butane) from cylinders for refueling household lighters by persuasion.

As a result of these actions, the latter came to a life-threatening and health-threatening state of toxic intoxication, which could lead to acute heart failure, hypoxia and death of a minor.

The materials of the criminal case initiated on the grounds of Part 1 of Article 151.2 of the Criminal Code of the Russian Federation established that during the period of two months there were at least 5 cases of involving a teenager in dangerous actions of similar content.

The defendant was sentenced by the court to 6 months of correctional labor ^[1].

Despite the obvious adverse, and even fatal, effects on the human body of the consumption of toxic substances, there is no direct ban on inhaling gas by the current legislation. At the same time, in this case, the law enforcement agencies (represented by the investigative bodies, the prosecutor's office and the court) neglected the proper, from the point of view of the literal interpretation of the provisions of the Criminal Code of the Russian Federation, qualification of the above actions as illegal and concluded that there were signs of a crime.

In this regard, we consider the urgent need for additional clarifications from the competent authorities to develop a uniform approach in the theoretical and legal understanding and application of this provision of the criminal law.

It should be noted separately that due to the aggravated internal economic and socio-political problems in Russia in recent years, along with the above forms of dangerous behavior, minors have also been involved in mass riots.

As you know, unauthorized protest exits of people on the streets of big cities, crowd clashes with representatives of law enforcement agencies are often spontaneous and uncontrolled. Participation in such actions can be dangerous and pose a threat to life and health not only for a child, but also for an adult.

Based on judicial practice, actions involving minors in mass riots are also considered dangerous and fall under the qualification of Article 151.2 of the Criminal Code of the Russian Federation ^[3].

In the doctrine of criminal law, when describing the signs of the objective side of the elements of crimes provided for in Article 110.1 of the Criminal Code of the Russian Federation, such forms of criminal declension as "rufing", "hooking", etc. are also often mentioned.

Considering that the compositions of involvement in dangerous actions and inducement or assistance to a teenager in suicide are adjacent, mutually exclusive, and not competing, for proper qualification, it should be established whether the intent of the person involved in arousing the desire to commit suicide in the inclined person? If the answer is "no" and the criminal motivation was limited only to a perverted test of the teenager "for strength", then the actions of the "puppeteer" are subject to evaluation in accordance with Article 151.2 of the Criminal Code of the Russian Federation. If the purpose of participating in "dangerous games" was to create conditions in which a minor decided to commit suicide, then the signs of paragraph "a" of Part 3 of Article 110.1 of the Criminal Code of the Russian Federation are clearly seen.

Thus, the direction of intent will be the defining property that allows you to distinguish between these crimes.

From the position of the subjective side, these crimes are equally characterized by the presence of direct intent to commit a criminal act, which, in general, can be explained by the formal construction of objective signs of the components of involvement in dangerous actions, inducement or assistance to suicide.

The characteristics of the subject in these compositions also coincide – they are a person who has reached the age of legal capacity (a special subject).

Thus, having analyzed and compared the investigated elements of crimes (paragraph "a" of Part 3 of Article 110.1, part 1 of Article 151.2 of the Criminal Code of the Russian Federation), we come to the following conclusions.

1. Despite the identity, in a broad sense, of the concepts of "declination" - "involvement", the obvious similarity of the signs of the objective side, fixed in the dispositions of the considered elements of crimes, and the methods of their commission, these criminal acts still have completely different objects of encroachment. Nevertheless, it is impossible to deny the obvious interest of the legislator in fixing the norms aimed at ensuring maximum protection of the rights and interests of minors.

2. Both in theory and in practice, we see that these crimes can often be committed through the participation of adolescents in the same "dangerous games", extreme sports activities and other activities that pose a potential threat to the life and health of the child. Fundamental to the differentiation of related elements of crimes will be qualifications, taking into account not only the specifics of the motivation and intentions of the person involving (inclining), as mentioned earlier, but also the minor himself.

If the purpose of participating in races in front of cars moving at high speed is the desire to "show off" in front of peers, earn credibility, become "one's own", in addition, a teenager expects a favorable result of such a race for himself and does not seek to end his life under the wheels of a car, then the actions of adult "mentors" (if available signs of involvement) are fully covered by the signs of Article 151.2 of the Criminal Code of the Russian Federation.

If a teenager, due to the peculiarities of his character and psyche, as well as criminal influence (declination), realizing the nature of the consequences, sees the only way out for himself to commit suicide and deliberately throws himself under the wheels, then this is nothing more than a crime provided for in paragraph "a" of Part 3 of Article 110.1 of the Criminal Code of the Russian Federation.

3. It is the development of information and telecommunication technologies and, in particular, the global Internet that "owes" the appearance of the crimes under consideration on the pages of domestic criminal legislation. In the context of a progressive increase in the user audience of social networks and the rejuvenation of its quantitative composition (acquaintance of children with gadgets from an early age), the problem of protecting information and Internet content consumed, especially by minors, is becoming increasingly important and topical.

For the purpose of more systematic differentiation of criminal responsibility for the commission of these crimes against minors, we consider it quite appropriate to provide as a special subject of their commission a parent, guardian, teacher or other person who, by virtue of the law, is entrusted with the duties of raising a child, fixing this feature in certain parts of the articles under study. Such an amendment will strengthen the measure of punishment due to a significant increase in the degree of public danger of criminal acts.