Criminal and legal qualification of the victim of the crime of enticing a minor into committing acts endangering his life (Article 151² of the Criminal Code of the Russian Federation)

Greben'kova Lidiya Aleksandrovna ORCID: 0000-0002-4807-4127 Lecturer, Department of Criminal Law, Southwest State University 305040, Russia, Kursk region, Kursk, ul. 50 Let Oktyabrya, 94, room 710 lidiagrebenkova@gmail.com Other publications by this author

For the theoretical understanding and correct application of the criminal law norm, especially relatively recently appeared in criminal legislation, the category of the object of encroachment is of paramount importance, since it reflects the characteristic of the public danger of a criminal act, which serves as a prerequisite for its criminalization.

In addition to the main content of the object, in a number of compositions, including the act under consideration, optional features of the object are identified and taken into account, which are the subject of the crime and the victim. With regard to assaults against minors, as well as crimes against the person in general, the latter category is subject to consideration. The signs of the victim are inextricably linked with the personality traits that need criminal protection. In particular, such a property is the presence of a personality in the process of formation and formation, which corresponds to the characteristics of the victim of a crime as a minor.

The characterization of a person as a minor is multifaceted and complex. It would be wrong to reduce its content solely to age characteristics.

Thus, from the standpoint of developmental psychology, a minor is a person who is in the process of becoming, accompanied by rapid physical development, socialization and formation of cognitive abilities, sharp and significant qualitative changes in the psyche ^{[1, p. 523]}. At the end of this stage of formation, the adulthood of the individual comes. In the process of psychological development of a minor, certain stages are distinguished. The most common in Russian science is the periodization of D. B. Elkonin's mental development, which includes three major epochs: early childhood (0-3 years), childhood (3-11 years), adolescence (12-17 years) ^[2]. This is also consistent with the data of foreign researchers, according to which the majority of adolescents aged 17-18 years begin to perceive themselves as "adults" ^[3].

It should be noted that these age limits are conditional, since the processes of psychological development are largely individual. In addition, Western psychological literature notes that in modern cultures, as the total life expectancy and the period of active labor activity increase, the reproductive period expands, a new social norm appears, according to which young people should "look for themselves" for some time period, prolonging the process of becoming independent a member of the society. There is a tendency towards the emergence of a new age period of "becoming an adult", preceding the final adulthood. Such formation, according to supporters of this approach, occurs at the age of 18-25 years ^[4].

The socio-legal approach is associated with the identification of the child as a subject in need of special legal protection. At the same time, in international documents and in national legislation on the protection of childhood, the concepts of "child" and "minor" are equated to each other. In the Convention on the Rights of the Child, this legal status is associated with reaching the age of eighteen or adulthood. Similar provisions are contained in Article 1 of Federal Law No. 124-FZ of 24.07.1998 "On basic guarantees of the rights of the child in the Russian Federation", which stipulates that a child is recognized as "a person before he reaches the age of 18 (majority)".

In connection with the development of ideas about the extension of the period of formation of adulthood, a number of authors propose to reconsider this approach to determining the age limit of special protection of rights and interests as too restrictive. They propose to consider persons under the age of 24 as still in the process of becoming a person, extending to them legal guarantees related to the legal status of a subject in need of support to ensure its normal development, health and well-being ^[5].

Finally, a minor can be considered as the legal status of a subject, including his legal personality, the rights and obligations established by law, their guarantees and the ability to bear responsibility ^{[6, pp. 58-59]}. The legal status of a minor is limited. The removal of these restrictions in full in the Russian Federation and in most other countries of the world is associated with the achievement of the age of eighteen or the fulfillment of certain conditions (emancipation), which is in good agreement with the ideas of age psychology, including in the light of ideas about "becoming an adult", for which it is necessary to recognize a young individual as a full-fledged member of society, able to contribute to social development, but at the same time in need of some protection.

All three of the above approaches to the content of the category "minor" are important for the characteristics of the victim of a crime under Article 1512 of the Criminal Code of the Russian Federation. The psychological characteristics of a minor, such as the immaturity of his personality, which is in the process of rapid physical and mental formation, the dependent nature of his psyche, the lack of formation of character, the lack of stable social and cultural guidelines, determine the possibility of harming the main object of encroachment. The need for special social and legal protection of a minor (child) is a prerequisite for criminalizing the actions of the perpetrator, which do not directly harm the additional object (the life of a minor), but create conditions for putting him in danger. The limited legal status of a minor (first of all, delinquency) determines his complete or partial inability to bear responsibility for the offense in which he is involved, which determines the need for full or partial transfer of such responsibility to the person who involved the minor in the commission of the offense.

Crimes against minors provided for in Chapter 20 of the Criminal Code of the Russian Federation are among the fairly common in the practice of applying criminal law, and do not suffer from a lack of attention of theorists. In this regard, the issues of the criminal-legal characteristics of a minor as a victim of crimes of this chapter are considered in sufficient detail both in the educational literature and in scientific works ^{[7; 8; 9]}.

Based on the content of these sources and the actual practice of applying the norms of Chapter 20 of the Criminal Code of the Russian Federation, any person under the age of eighteen should be recognized as a victim of a crime under Article 1512 of the Criminal Code of the Russian Federation. This age limit correlates well both with the standard upper limit of adolescence preceding adulthood established by psychology, and with the age limit of a child provided with special social protection established by regulatory legislation. It is at this age that, in most cases, full, unlimited delictworthiness is acquired.

At the same time, it should be noted that there are some controversial points concerning the characteristics of a minor as a victim of assaults provided for by Chapter 20 of the Criminal Code and Article 1512 of the Criminal Code, in particular.

Disputes are caused by the possibility of recognizing as victims persons who do not have at least limited delictworthiness. With regard to the similar structure of Article 150 of the Criminal Code of the Russian Federation, there are opinions that its victim can only be a person who has reached the age of criminal responsibility for the relevant act (14 or 16 years), because only he is capable of committing a crime. Otherwise, the deed, according to supporters of this point of view, should be considered as mediocre execution without the need for additional qualification under Article 150 of the Criminal Code of the Russian Federation, or, de lege ferenda, as "the use of a person who has not reached the age of criminal responsibility in the commission of a crime" ^[10].

This interpretation is not accepted by judicial practice, which recognizes that it is possible to bring to justice persons who have involved minors of any age, including under 14 years of age, in committing a crime. Thus, according to O.H. Galimov and V.S. Tychenko, who reviewed more than 100 court decisions, "in most cases, when minors who have not reached the age of criminal responsibility are involved in committing a crime, the courts classify the actions of subjects as perpetrators of a crime in which minors were involved, as well as as a subject of a crime under Article 150 of the Criminal Code of the Russian Federation" ^[11].

Similarly, the issue of involvement in the commission of illegal actions should be resolved. This is due to the fact that the law does not indicate as a necessary consequence of the actions of the guilty the fact of potential or actual bringing of a minor to responsibility for the committed illegal act. It does not matter whether the composition of the offense is formed by the actions of the minor himself, by the joint actions of an adult and a minor, or only by the actions of a person who has reached the age of 18. In any case, there will be an actual illegal act, in which a minor is involved in the commission of which a threat to his life is created.

An exception may be the case when the indelicitability of a person who has not reached a certain age is not general, but special, that is, when the age characteristics of a person determine the possibility of recognizing an act as illegal, and do not act as a condition for the onset of responsibility for it. For example, a person who inclines a seventeen-year-old boy to have sexual intercourse with a fifteen-year-old girl cannot be prosecuted under Article 150 of the Criminal Code of the Russian Federation, since such an act is not recognized as violating criminal law. Similarly, there will be no liability under Article 1512, if the constructive sign of the composition of the illegal act is the possibility of its commission only by a special subject, namely persons older than a certain age, and the minor who is inclined or involved in the commission of these illegal actions has not reached this age.

Some authors dispute the possibility of recognizing as victims persons whose participation in the commission of an offense is not capable of harming their normal moral development due to their too young age or insufficient development of cognitive abilities ^{[12, p. 212; 13, p. 53]}.

Judicial practice resolves this issue in a very definite way: regardless of the age, the ability of a minor to realize the nature of the act in which he is involved or inclined to commit, he can be recognized as a victim of the corresponding crime. The compositions of the relevant crimes, including Article 1512 of the Criminal Code of the Russian Federation, have a design that does not require establishing the specific harm caused to a minor by the commission of an assault. Socially dangerous and endangering public relations related to the provision of social protection of minors, the very fact of committing an act prohibited by law against a minor may be recognized as guilty.

In addition, the original thesis of these authors cannot be accepted either. Any events that occur in the life of a minor, even those that at first glance they are not aware of, can leave a deep trace in the psyche and negatively affect the formation of his personality. This is especially evident in cases of attacks on the sexual integrity of minors, however, involvement in the commission of illegal actions can affect deep mental processes.

In relation to Article 1512 of the Criminal Code of the Russian Federation, which is the subject of this study, one should not forget about the presence of an additional object: there is a threat to the life of a minor, regardless of what degree of awareness the minor has of what is happening to him.

In this regard, N.V. Shchetinina's conclusion seems incorrect that "if the victim, due to an insignificant age, a lag in mental development unrelated to a mental disorder, or a mental illness, is unable to assess the actions in which he is involved as posing a danger to his life, imputation of Article 1512 of the Criminal Code of the Russian Federation excluded" ^[14]. The author suggests that the deed should be qualified as a crime against life "depending on the mental attitude of the perpetrator to the deed," however, such a qualification is possible either in the presence of direct intent covering the death of the victim, or in the actual occurrence of death, provided that it is causally related to the actions of the perpetrator. Both of these circumstances exclude qualification under Article 1512, regardless of the victim's awareness of the danger to his life.

The composition of Article 1512 of the Criminal Code of the Russian Federation, unlike the compositions of crimes against life, does not imply the occurrence of consequences in the form of the death of a minor or any other physical harm. Moreover, for this composition, it is not even mandatory to put the victim in a situation where there are actual conditions for causing him such harm. It is sufficient that the illegal actions in which a minor is involved presuppose the potential possibility of death as a possible consequence of the participation of a minor. Judicial practice considers, for example, unauthorized protest actions as such ^[15]. There is an example of bringing to criminal responsibility under Article 1512 a mother who put a six-year-old child behind the wheel of a car moving at high speed ^[16].

It is obvious that in the situations described above, regardless of what the assessment of the danger of these actions on the part of a minor was, there are no grounds for bringing to responsibility for any crime against life. At the same time, the interests of the normal development of minors are definitely harmed, their lives are objectively put in danger, which determines the possibility of applying Article 1512 of the Criminal Code of the Russian Federation.

Also, the presence of the corpus delicti provided for in Article 1512 of the Criminal Code of the Russian Federation does not affect the negative characteristics of the moral qualities of a minor, the commission of crimes and offenses by him in the past, since in this case further harm to his moral and physical development is not excluded, and his life is also put at risk.

A number of authors note the failure of the wording of the articles of the Special Part indicating the minor age of the victim due to the fact that minors, in accordance with Article 87 of the Criminal Code of the Russian Federation, are recognized as persons who were fourteen at the time of the commission of the crime, but not eighteen years old ^[17]. To solve this problem, it is proposed to indicate, in addition to the minor, also the minor age of the victim, or to abandon the use of the blank term "minor" altogether with the transition to specifying a clear age limit ("persons under the age of eighteen") ^{[18, p. 155]}.

A certain terminological ambiguity here is due to the fact that the criminal law refers to both the minor age of the subject of the crime and the minor age of the victim. The norms of Article 87 of the Criminal Code of the Russian Federation unambiguously refer specifically to a minor subject of a crime, while the norms of Chapter 20 of the Criminal Code of the Russian Federation refer to a minor as a special psychological, social and legal status of a person, determining the need to establish special criminal protective measures. This status is enjoyed by all persons under the age of eighteen, regardless of their status as a subject of crime.

An indication of a young age is possible when a separate qualifying attribute is identified, as is done in the compositions of sexual crimes, however, this approach is not typical for the compositions of Chapter 20 of the Criminal Code of the Russian Federation.

An interesting question is the possibility of recognizing emancipated minors as victims of an act provided for in Article 1512 of the Criminal Code of the Russian Federation. In accordance with Article 27 of the Civil Code of the Russian Federation, a minor who has reached the age of sixteen can acquire full civil capacity "if he works under an employment contract, including a contract, or with the consent of parents, adoptive parents or a trustee is engaged in entrepreneurial activity." At the same time, although an emancipated minor becomes a full-fledged participant in civil legal relations, he does not lose his legal status as a minor in relations regulated by other branches of law ^[19]. In accordance with the norms of international legal acts on the protection of the rights of the child and national legislative acts, he continues to be provided with special social and legal protection related to his age.

This is quite reasonable: the recognition by society and the state of the fact that a person who has reached the age of sixteen can be a full-fledged participant in property and personal non-property relations regulated by civil law is aimed at ensuring that such a person can realize his potential as a member of society. At the same time, ensuring increased protection of his life, health, normal physical and mental development by assigning him to a special category of victims in criminal legislation not only does not prevent such potential realization, but also serves as its essential guarantee.

On the other hand, there may be a situation when a person who has reached the age of eighteen on a calendar corresponds to an earlier period of development according to his mental characteristics. The legislator only recognizes the existence of such a category of persons, indicating in Article 96 of the Criminal Code of the Russian Federation that in exceptional cases, taking into account the nature of the committed act and personality, the court may apply the provisions of criminal legislation on the responsibility of minors to persons who have committed crimes between the ages of eighteen and twenty, except for their placement in a special closed educational institution or an educational colony.

Thus, even under the current legislation, in exceptional cases, a person aged from 18 to 20 years old may be recognized as insufficiently mature in terms of psychophysiology and socialization, having an insufficiently formed system of social guidelines, as well as more susceptible to influence from adult criminals, which determines the possibility of applying to him the norms of Section V of the Criminal Code of the Russian Federation ^[20].

Despite the fact that international legal norms do not provide for the need to establish increased protection for any categories of persons who have reached the age of eighteen, it seems appropriate to establish that certain norms of Chapter 20 of the Criminal Code of the Russian Federation, in particular, Article 1512 of the Criminal Code of the Russian Federation can be applied to persons aged 18 to 20 years, if they knowingly for a person who involves them in committing illegal actions, they are not psychologically and socially mature enough to fully realize the danger to their lives associated with participation in such actions, as well as independently and consciously make a decision about taking on the risk of harm to life and health.

In the future, it will be possible to say that the age limit of special protection of rights and interests related to the formation of a personality will expand further if the trends of increasing the duration of the growing up period associated with a general increase in life expectancy and normalization of inclusion in the number of stages of personal development of "becoming an adult" persist.

Finally, a particular question should be considered: at what point should a person be considered to have reached the age of majority in relation to the possibility of recognizing him as a victim of an act provided for in Article 1512 of the Criminal Code of the Russian Federation. Usually, in criminal law, a person is considered to have reached a certain age from 0 hours of the day following his birthday, or, if the age is not exactly known, from 0 hours of the day following the last day of the year, which is defined as the year of reaching a certain age. This approach is due to the fact that all doubts that cannot be eliminated when proving a criminal case, including those concerning the age of the person who committed the crime, are interpreted in favor of such a person ^[21].

One might think that in a situation where a minor is a victim of a crime, this principle should "work" in the opposite direction: all irremediable doubts should be interpreted in favor of the person committing the crime, that is, in relation to Article 1512 of the Criminal Code of the Russian Federation — a person involving a minor in committing acts that pose a danger to the life of a minor. From this point of view, the injured person should cease to be considered a minor from 0 o'clock on the day of his birth.

However, such an approach would overlook two circumstances. Firstly, in the norm of Article 1512 of the Criminal Code of the Russian Federation there is no indication of a known knowledge of the age of a minor, which allows us to say that in conditions of uncertainty regarding such an age, if the perpetrator, despite this circumstance, still commits a criminal act, he must be responsible for it. In addition, this norm is aimed at protecting the life, health and normal development of a minor. These interests are of particular importance from the point of view of the norms of international law and the Constitution of the Russian Federation, which suggests that in conditions of uncertainty, the issue of determining age should be interpreted in such a way as to primarily guarantee the protection of minors from criminal encroachments.

Accordingly, it will be correct to consider a person a victim of a crime under Article 1512 of the Criminal Code of the Russian Federation from 0 hours of the day following the eighteenth day of his birth, or, if the age is not exactly known, from 0 hours of the day following the last day of the year, which is defined as the year of reaching the age of eighteen.

Summing up the study of the criminal-legal characteristics of the victim of the involvement of a minor in the commission of actions that pose a danger to his life, the following conclusions can be drawn.

The identification of minors as victims of involvement in the commission of illegal actions that pose a danger to life is due to the psychological characteristics inherent in this category, the need for their special social and legal protection and limited legal status.

A person is considered a minor and may be a victim of the crime in question from the moment of birth to 0 hours of the day following the eighteenth day of his birth, or, if the age is not exactly known, from 0 hours of the day following the last day of the year, which is defined as the year of reaching the age of eighteen.

A victim of a criminal act provided for in Article 1512 of the Criminal Code of the Russian Federation may be any person who has not reached the age of eighteen, regardless of the degree of his mental development, moral qualities and ability to bear responsibility for illegal activities in which he is involved, if the illegal nature of this activity is not inextricably linked with the implementation of its person over eighteen years.

If a minor has acquired full civil capacity as a result of emancipation, this does not mean that he loses the right to state guarantees related to the protection of his life, health, normal physical and mental development. Such minors also belong to a special category of victims who may be harmed when committing an act provided for in Article 1512 of the Criminal Code of the Russian Federation.

It seems appropriate to indicate in the criminal law (for example, in the note to Article 1512 of the Criminal Code of the Russian Federation) that the victims of this act may be persons aged 18 to 20 years, if they are not psychologically and socially mature enough for the person who involves them in committing illegal actions, in order to be fully aware of the danger to their lives associated with participation in such actions, as well as independently and consciously make a decision about taking on the risk of harm to life and health.