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CONTENTS 2021 No 2
CRIMINOLOGY
Klebanov L.R. Technical measures of preventing the crime: concept, types and agents of using
Degterev A.A. Criminalization of offences against constitutional human and civil rights and freedoms, taking into account the prevalence of the act
Kadnikov N.G. On the initiative of the Supreme Court of the Russian Federation to introduce the category of criminal misdemeanors to the Criminal Code of the Russian Federation
CRIMINAL PROCEDURAL LAW
Zaitsev O.A. New criminal procedure mechanisms in the sphere of entrepreneurial and other economic activities
PRESENTATION OF THE UNIVERSITY
CHECHEN STATE UNIVERSITY
Al’hanov N.M. Modern trends in the formation of international terrorism
Aiskhanova E.S. Modern approaches to the definition of international terrorism
Bidova B.B. The role of law in the formation of a system of legal support of national interests
Ganaeva E.E. The main determinants of extremist crimes
Musaev S.-M.I. Organizational and legal bases of national security in modern Russia
Yarychev N.U., Saidov S.A. Issues of national security of Russia in the aspects of solving migration problems
Yakhyayeva M.U. The main factors that determine money or other property legalization (laundering)
CRIMINALISTIC
Asayonok B.V. Scientific and theoretical bases of criminalistic education to ensure the administrative process in the Republic of Belarus
Kuchin O.S., Kuchina Ya.O. Retrospective and prospective analysis of the definition of “digital forensics”
CRIMINAL LAW
Sargsjan A.A. Some problems of legislative regulation of the state of intoxication in the system of norms of the General and Special parts of the Criminal Code of the Russian Federation and the Republic of Armenia
Zhilkin M.G. On the question of criminal liability for unfinished illegal entrepreneurship
Lebedev M.V., Serebrennikova A.V. Artificial Intelligence: regulation problems in the criminal legislation of the Russian Federation
LEGAL SUMMER SCHOOL AT THE UNIVERSITY OF POTSDAM
Knaisch Lonnecke. Medical euthanasia
Kornblum Oliver. Breach of patient confidentiality
Rühe Luca Sophie. Corruption in the healthcare system – is the German Criminal Code an effective measure to combat corruption in the healthcare system?
Torak Iryna. Refusal of treatment: genuine omission and false omission?
Wegemund Cora. Criminal liability and organ transplantation
Ziegler Helene. Medical treatment as physical injury
Zimborski Sarah. Accounting fraud in the health care system
MOSCOW CRIMINOLOGICAL PRACTICE
Goryunov V.S., Kotova K.A., Lebedkina A.M., Minyushkina A.R. Gangs as a type of teenage and youth destructive communities
INTERVIEW
Salamova S.Ya., Belova V.A., Gorbunov S.V., Tikhonov R I. Interview with Gennadiy Vladimirovich Dashkov, Doctor of Legal Sciences, Professor, Professor of the Chair of Criminology and Executive Law at Kutafin Moscow State Law University
CRIMINOLOGY
Klebanov L.R. Technical measures of preventing the crime: concept, types and agents of using
Abstract
Mission. Effective crime prevention is possible only through an integrated approach. According to such a criterion as the content of the prevention of criminal activity, preventions are classified into legal, ideological, economic, organizational and etc. measures. Technical crime prevention should be mentioned in particular, but unfortunately, very little attention is paid to this type of prevention in the criminological literature. Technical preventive measures are very effective means of combating crime, which has already been proven many times. This problem is especially relevant in the light of victimological crime prevention, given that the groups of criminal risk are, first of all, adults, the elderly and women. Technical security measures prevent those crimes, the consequences of which will be irreparable and fatal. The article gives the author’s classification of technical preventive measures. The article also reflects the need to use technical means of crime prevention based on interdisciplinary approach including technical, legal, medicine and other knowledge.
Methodology: dialectical method, analysis, synthesis, deduction, formal legal method, systemic method, method of intersectoral legal research.
Conclusions. At the present time, when the underworld is adopting all the actual achievements of mankind, technical counteraction to crime is often decisive. All specialists involved in the process of combating crime in general and individual groups of crimes should have the necessary knowledge about technical measures to combat crime, devices, mechanisms and technologies that are used to prevent crime. Achievements of technical and natural sciences must be used in the field of crime prevention.
Scientific and practical significance. The results of the study can be useful both to criminologists, students, graduate students and teachers at of law universities and faculties, as well as to practitioners of law enforcement agencies, security services and control of commercial organizations, as well as citizens from the so-called victim groups. The results of this study can be used to create a special course “Technical measures for the prevention of crime”, as well as to conduct further interdisciplinary (for example, joint criminological and criminalistics) research on this problem.
Keywords: crime, crime prevention, technical measures, database, crime suppression, victim group, punishment, means of supervision, means of control, subjects of prevention.
Degterev A.A. Criminalization of offences against constitutional human and civil rights and freedoms, taking into account the prevalence of the act
Abstract
Mission. The article discusses issues directly related to the basis of criminalization (decriminalization) with regard to the norms providing for responsibility for violation of political, personal and socio-economic rights of man and citizen, which, in the opinion of most scientists, is their social danger. The author of the article argues the position on the basis of which the prevalence of certain crimes against the constitutional rights and freedoms of man and citizen cannot be an independent feature, which is taken into account equally with the public danger in the criminalization (decriminalization) of acts, but is only an optional feature of the public danger of criminal deeds. Each separately taken crime against the constitutional rights and freedoms of man and citizen, as its phenomenon, includes a certain degree of social danger, so as not to resort to taking into account its prevalence, which characterizes the cumulative danger of such acts. This, in particular, is indicated by the sanctions of articles providing for liability for these acts, and they, as is known, reflect the typical danger of a crime.
Methodology: dialectical method, analysis, synthesis, deduction, formal legal method, systemic method, method of intersectoral legal research.
Scientific and practical significance. The prevalence of an act, in relation to the norms providing for liability for violation of the conditions of legitimacy or the legitimacy of the authorities, cannot be included in the basis of criminalization. From a practical point of view, the elimination of these shortcomings should serve to facilitate the proper application of the relevant norms of electoral crimes in criminal law.
Conclusions. The prevalence of an act, in relation to the norms providing for liability for crimes against constitutional human and civil rights and freedoms, cannot be included in the basis of criminalization.
Keywords: social conditioning, criminalization of acts, political system, legitimacy of power, basis of criminalization, conditions of legitimacy, prevalence of actions, social danger, terror of power.
Kadnikov N.G. On the initiative of the Supreme Court of the Russian Federation to introduce the category of criminal misdemeanors to the Criminal Code of the Russian Federation
Abstract
Mission. To analyse the draft law on the introduction of the category of criminal misdemeanours in the Criminal Code of the Russian Federation sent to the State Duma of the Russian Federation by the Supreme Court of the Russian Federation, to determine the significance of such acts for the implementation of modern criminal policy.
Methodology: dialectics, analysis, deduction, formal legal method, method of intersectoral legal research, comparative legal method.
Conclusions. The proposals of the Supreme Court of the Russian Federation are important for modern criminal policy since the introduction of the category of criminal misdemeanours will allow us to talk about the continuation of the humanization of criminal legislation. This is not the first time that the Supreme Court of the Russian Federation has made this proposal but it is not supported by the Government. Nevertheless, there is a positive experience of such a change in criminal legislation, which is associated with the adoption of a new Criminal Code in the Republic of Kazakhstan in 2014, where the category of criminal misdemeanours is of great importance in the institute of categorization of crimes. The introduction of the category of criminal misdemeanours is important, especially at a time when the state must offer society, citizens, along with severe measures against group violations and mass riots, humanistic principles of criminal policy against persons guilty of crimes of small and medium gravity. It is necessary to agree with the authors of the draft law that a criminal offense, on the one hand, contains all the signs of a crime, including being socially dangerous, and on the other hand, it is distinguished by the fact that its danger to society is minimal, as well as the danger of the person who committed it, which makes it possible to apply other measures of a criminal nature that are not criminal penalties.
Scientific and practical significance. The significance of the scientific article lies in the need to emphasize the positive role of the Supreme Court of the Russian Federation in the implementation of a more accurate differentiation of criminal liability at the legislative level.
Keywords: categorization of crimes, criminal misdemeanour, draft law prepared by the Supreme Court of the Russian Federation, humanization of criminal responsibility.
CRIMINAL PROCEDURAL LAW
Zaytsev O.A. New criminal procedure mechanisms in the field of entrepreneurial and other economic activities
Abstract
Mission: a) to identify the special role of criminal procedure mechanisms in ensuring the rights and legitimate interests of entrepreneurs involved in criminal proceedings; b) to identify the features of criminal procedure legislation regulating certain rules applied in the investigation and trial of cases against business representatives; c) to reflect the positions of researchers on the new criminal procedure policy in the field of entrepreneurship; d) substantiate recommendations for the further development of criminal procedure mechanisms applied in cases of the category of crimes under consideration.
Methodology: dialectical method of cognition, general scientific methods of abstraction, analysis and synthesis, as well as special legal methods: historical-legal, comparative-legal, logical-legal, etc.
Conclusions. There is a need for a unified approach to the development of criminal legal means and criminal procedural mechanisms aimed at protecting the rights and freedoms of entrepreneurs during the preliminary investigation and trial of criminal cases of economic crimes. The legislation needs further improvement, taking into account the experience of foreign countries related to ensuring the legitimate interests of business entities.
Scientific and practical significance. The article shows the prospects for the development of criminal procedure legislation, which provides for a special procedure for legal proceedings against persons engaged in entrepreneurial activities. From a practical point of view, the improvement of criminal procedure mechanisms should serve to ensure the rights and legitimate interests of representatives of the business community, exclude the possibility of resolving disputes between economic entities and pressure on business structures.
Keywords: criminal policy, economic security, criminal procedure legislation, criminal procedure mechanisms, business activity, criminal prosecution of entrepreneurs.
PRESENTATION OF THE UNIVERSITY
CHECHEN STATE UNIVERSITY
Al’hanov N.M. Modern trends in the formation of international terrorism
Abstract
Mission: the process of global globalization blurs the boundaries between foreign and domestic policies of States, between world and national culture, and leads to common challenges, one of which is the terrorist threat. Terrorism has become a dangerous, global phenomenon that hinders the normal development of international relations and destabilizes the security of many regions and entire countries. One of the key factors contributing to the development of effective mechanisms to counter international terrorism is the clarification of modern trends in its formation in the modern world, which is largely determined by global phenomena and features of the development of modern civilization. International terrorism is an asymmetric response to the challenges of globalization, the reaction of the emerging postmodern “network” organization of the world to pressure from traditional “hierarchical” structures of management of world processes.
Methodology: given the complex multi-faceted nature of the research topic, it requires a comprehensive approach using knowledge accumulated primarily in legal, historical, and political science, so an important role in the work is given to historical and historical-legal analysis. However, the main role is played by methods of inductive generalization, comparative legal analysis (mainly in its functional version), and formal legal analysis.
Conclusions. it is concluded that filling the term “terrorism” with a specific legal content will contribute to uniformity in defining the essential features of terrorism, creating a theoretical basis for developing effective mechanisms for eliminating the causes and conditions that give rise to terrorism, developing an optimal universal legal model for combating known manifestations of terrorism. The existence of consensus on its main legal features is justified, despite the existing definitional differences. The features of terrorism as a special political and legal phenomenon are defined.
Scientific and practical significance: an attempt has been made to study the international legal problems of countering terrorism and to draw balanced and legally justified conclusions about the features of the international legal fight against terrorism and its development trends. The theoretical features of the complex of international legal norms governing the sphere of counter-terrorism are shown (relative stability and stability of the internal organization, the presence of its own sources of law, the presence of common legal structures, the ability to systemically manage international relations related to the fight against terrorism.
Keywords: globalization, terrorism, modern terrorism, main trends, terrorist organizations, world community, struggle, transnational terrorism.
Aiskhanova E.S. Modern approaches to the definition of international terrorism
Abstract
Mission: in our time, taking into account the existing parameters of international terrorism, it has become characterized by a long-term and sustainable nature. The processes of further development of international terrorism and the constant increase in the degree of its social danger to all mankind are expected to depend largely on the possibility of preserving and intensity of the impact of its existing features, as well as on the positive potential of the world community aimed at minimizing them. This article states that the collocation “international terrorism” will be used in its general meaning, as a phenomenon in general, and to reflect such a concept as a separate terrorist act. The author tried to formulate a definition of this concept, since the phenomenon of terrorism is very diverse and manifests itself in different ways. The purpose of this work is to define international terrorism.
Methodology: the following methods were used as basic methods: systematization method, which helped to consider terrorism as a phenomenon; comparative-historical method, which allows to analyze the phenomenon of terrorism, taking into account the historical context; comparative method, which consists in comparing and contrasting different points of view on the problem under study; content analysis of publications on the topic; situational analysis. General scientific theoretical methods were also used: the method of selection, generalization, synthesis, analysis and evaluation of scientific material.
Conclusions: international terrorism is the coercion of individuals or collectives to act in such a way as to ensure the policy of terrorist violence. Coercion is characterized by the fact that it involves an international factor or is directed against objects that are under international protection; and that the coercion is carried out in order to achieve a certain effect through violence. Such an algorithm of actions has an international component in its structure if: the terrorist or his victim are citizens of different countries, or the full (partial) execution of terrorist acts occurs in more than one country. In our view, this definition reflects only a limited range of criminal terrorist acts. For example, objects that are under international protection are shown in a rather vague and selective way. This definition does not convey the meaning of terrorism in the part of its characteristic that is associated with creating an atmosphere of fear in order to achieve a criminal goal. In addition, the definition uses the collocation “policy of terrorism”, which has no interpretation due to the lack of interpretation of the word “terrorism” itself. However, it must be said that this definition has its positive aspects. In a fairly concise form, it was possible to show such serious components of international terrorism as the essence of criminal acts (compulsion to act in a certain way), the object of the attack (objects that fall under international protection), the purpose of criminal behavior (transformation or strengthening of systems of a political, social, economic nature or strategy of a country (a certain territory)).
As part of the formation of theoretical prerequisites for the fight against international terrorism, it is important to focus on the assessment of the extent to which the policy and strategy of combating terrorism in the system of international relations are able to identify the operational and strategic capabilities of terrorists.
Scientific and practical significance: the results of the research can be used to solve theoretical and practical problems in the field of combating international terrorism as a criminal act, as well as to form a legal definition of international terrorism and its composition as an international crime, which is particularly relevant in the light of the development of a Comprehensive Convention on international terrorism.
Keywords: international crime, terrorism, terrorist act, international terrorism, political violence.
Bidova B.B. The role of law in the formation of a system of legal support of national interests
Abstract
Mission: analysis of the essence, specifics and practical and scientific importance of ensuring national interests. The statement is substantiated that one of the main functions of the state has become the implementation of a set of tasks related to the development of national interests, the choice of programs and actions for their implementation, as well as their legal consolidation. Moreover, these aspects of the state’s activities are of great importance for the prevention of the emergence of social cataclysms that can harm the whole world.
Methodology: in solving the assigned tasks, the author relied on modern methods of cognition, identified and developed by philosophical science and tested by legal practice. The research is based on the principles of cognition of social phenomena, which make it possible to reflect the relationship between theory and practice, the form and content of the research subject, the process of development and qualitative changes in the phenomena under consideration. In the course of the study, priority was given to special legal methods of cognition, among which the methods of comparative legal analysis, theoretical legal modeling, legal diagnostics, interpretation of legal texts, and legal statistics should be distinguished.
Conclusions: the author proposes her own paradigm of national interests, defines the key directions of their summation and determination of the place and role, as well as the main features.
Scientific and practical significance: lies in the fact that a consistent analysis of problems in the field of ensuring national interests can significantly affect the theoretical and substantive and technical and legal aspects of regulatory and protective activities, provide a closer connection between the fundamental elements of the legal system of Russia, including elements of the mechanism for ensuring national security. This, in turn, will preserve the stability of the Russian state and create conditions for its progressive development. In addition, the complex nature determines the significance of the research results for the philosophy and sociology of law, constitutional, administrative, criminal law, as well as a number of other industry and applied legal sciences.
Keywords: national interests, theoretical and methodological approach, the system of legal support of national interests, law, legal implementation mechanism.
Ganaeva E.E. The main determinants of extremist crimes
Abstract
Mission: to analyze the phenomenon of “extremism” and develop tools for its prevention from the point of view of the achievements of modern criminal law, criminology and penal enforcement doctrine in order to form effective counteraction measures that are adequate to its public danger. Analysis of criminological characteristics of extremist crimes, identifying the main determinants of the analyzed group of crimes.
Methodology: the methodological basis of the research is the general method of dialectical cognition, which makes it possible to objectively and comprehensively consider the problems of legal assessment of the determinants of extremist crimes. As special research methods, a variety of scientific tools are used, including methods of analysis, synthesis, logical-legal (dogmatic), comparative-legal, historical-legal, concrete-sociological.
Conclusions: having considered the causes of modern extremism and its existing forms, it should be noted that it is objectively impossible to single out its sole cause. The main reasons for this phenomenon are not contradictions of religions, nations, races or political views, which act only as a pretext or tool for fighting, but social tension in society. Social tension arises as a result of ongoing political and socio-economic reforms and crises. It is reinforced by the specific geopolitical situation and multi-ethnic composition of the Russian population. The causes of all types of extremism that exist today are interrelated and in some cases amplify their effects.
Scientific and practical significance: the conclusions formulated in the article are the result of criminal law and criminological analysis of extremist crimes. They are aimed at creating an effective mechanism for countering extremism within the framework of systematization and unification of modern anti-extremist legislation.
Keywords: extremism, extremist activity, crimes, determinants, prevention, destructive consequences, extremist crimes.
Musaev S.-M.I. Organizational and legal bases of national security in modern Russia
Abstract
Mission: in modern Russia, under the conditions of reforming all spheres of its life, the problem of national security and the mechanism for ensuring it is one of the key issues. The difficult international situation of Russia, the spread of international terrorism, and the growing threats to the interests of citizens, society, and the state require the development of effective measures aimed at ensuring national security. An important role is also assigned to legal science, which contributes not only to the increment of scientific knowledge on this issue, but also to the development of necessary measures to consolidate the legal space, improve legal means to protect sovereignty, respect national interests and prevent threats to the national security of our state. Issues of theory and practice related to ensuring national security require a systematic and comprehensive approach that includes both general theoretical research and achievements of branch sciences, as well as the needs of practice in the interests of individual, society, and state security. They become more relevant in connection with the increase and change of security types in general, the emergence of new threats and challenges, and dynamic changes in the global geopolitical space
Methodology: includes two groups of methods: general scientific and special legal. General scientific methods are presented by the methods of empirical research (observation, comparison, description, etc.); methods of theoretical study (formalization, axiomatic method, hypothetical deductive method, etc.); general logical methods (analysis, generalization, analogy, modeling, etc.). Special legal methods include formal legal, comparative legal and method of interpretation of law.
Conclusions: according to the results of the study of key doctrinal approaches to determining the concept, essence and content of national security, it should be concluded that this concept is the main one in the Russian legal system. Achieving the state of national security, which is the main goal and essence of the activities of a consistent state structure, determines the key directions of the state’s life in domestic and foreign policy.
Scientific and practical significance: due to the fact that it is a study of the organizational and legal foundations the nature and content of national security and the mechanism of its ensuring in the modern Russia, the conclusions and generalizations outlined in this paper can serve as a methodological basis for further study of the problems of national security in general, its nature, content and mechanism of its protection and increase its effectiveness. Its practical significance is determined by its timeliness and relevance, the possibility of using conclusions and proposals to improve conceptual approaches to ensuring Russia’s national security, as well as in law-making and law enforcement practice.
Keywords: society, danger, security basics, national interests, security, national security, ensuring national security.
Yarychev N.U., Saidov Z.A. Issues of national security of Russia in the aspects of solving migration problems
Abstract
Mission: in modern conditions, population migration is increasingly becoming the focus of attention of the leaders of many countries. Depending on its scale, as well as the reasons that encourage or force a part of the population to leave their usual environment, migration can pose a serious threat to the national security of a country. The article reveals the problems caused by global population movements. The migration problem faced by the countries of the European Union is considered. The consequences of uncontrolled migration for the host country are reflected as the most acute problem facing many countries that are centers of attraction for migrants. The current migration situation in the Russian Federation is reflected. Measures aimed at improving the country’s migration policy are proposed. The growth of illegal migration in the last decade poses a serious threat to national security, requires an integrated approach to solving the problem of its regulation, the coherence of national economies taking into account their interests, finding new ways to solve problems related to the movement of migrants, at both national and European levels. The purpose of this study is to analyze and identify the main threats arising from the scale of migration processes, the impact of which on the economic and political life of the country requires improving the country’s migration policy, taking into account the challenges of the time.
Methodology: dialectical method, analysis, synthesis, deduction, formal legal method, system method, method of intersectoral legal research.
Conclusions: the strategy for implementing Russia’s national security in the field of migration management should be focused on regulating the influx of people to it, based on their level of qualifications, financial and other opportunities to engage in business and the specific needs of the regions of the country where they arrive.
Scientific and practical significance: in the context of increasing external threats, uncontrolled migration is a serious threat to modern Russia. Today, the previously established rules for the movement of labor resources in the world economy are seriously violated. On the other hand, in an unfavorable demographic situation and a systematic decline in the number of able-bodied population, migration inflow is a significant factor in compensating for the natural loss of the population. Therefore, we need a well-thought-out strategy for the migration policy of the Russian Federation, taking into account the current realities. Conclusions and proposals should serve to eliminate threats to national security and national interests of the state from the practical point of view.
Keywords: migration, causes of migration, illegal migration, migration processes, threats, national security, national interests.
Yakhyayeva M.U. The main factors that determine money or other property legalization (laundering)
Abstract
Mission: money laundering has become a priority issue at both the national and international levels in recent years. This is explained by the fact that the very procedure of money laundering is characteristic of most forms of organized crime, which refracts the process of economic decisions, undermines the activities of financial institutions, exacerbates social problems, and contributes to corruption. Theoretical and applied basics of using criminal law measures to counteract the legalization (laundering) of money or other property are analyzed and some recommendations for improving the criminal legislation, its implementation and the system of measures to prevent this type of crime are made.
Methodology includes the use of general scientific methods of knowledge – logical and historical ones. The study also used special methods of cognition of socio-legal reality: formal-logical, comparative-legal methods, synthesis, analysis, etc.
Conclusions: in this paper, the criminal-legal and criminological characteristics of crimes in the field of legalization (laundering) of money or other property acquired by criminal means are revealed in a new way; the author’s characteristic of the causal complex of this crime is presented. The determinants of legalization (laundering) of money or other property are identified: socio-economic; organizational and managerial; legislative insecurity of legal entrepreneurship; inconsistency of the norms of various branches of law in the field of countering the legalization (laundering) of money or other property.
Scientific and practical significance: the research results fill in the gaps in the system of theoretical foundations for combating crimes in the field of legalization (laundering) of money or other property by criminal legal and criminological means in the new conditions of Russian society functioning. These results make a certain contribution to the development of the science of criminal law and criminology.
Keywords: crime, corruption, money laundering, counteraction, determinants, criminal identity.
CRIMINALISTIC
Asayonok B.V. Scientific and theoretical bases of criminalistic education to ensure the administrative process in the Republic of Belarus
Abstract
Mission is the formation of the scientific and theoretical foundations of the system of forensic education in relation to the subjects involved in the administrative process.
Methodology: dialectical materialism, system-activity approach, forensic analysis, forensic classification.
Conclusions: traditional approaches to forensic education and the formation of forensic thinking in line with the topics studied are relevant only at the first level of higher education and at retraining. A special role in obtaining the forensic competencies of the subjects involved in the administrative process lies in professional development, professional training and departmental rulemaking.
Scientific and practical significance. The author analyzed the existing views on forensic education from the point of view of their applicability to the subjects involved in the administrative process, developed recommendations on the formation of a system of forensic education in this area, proposed various levels of forensic education in relation to the profession of such subjects.
Keywords: administrative process, administrative activities, forensic support; forensic education, forensic didactics, educational levels, advanced training, service training, local norm-setting, vocational training.
Kuchin O.S., Kuchina Ya.O. Retrospective and prospective analysis of the definition of “digital forensics”
Abstract
Mission: to compare and analyze the trend of appearance of the pseudo-term “digital criminology” in the science of criminology and prove that this is an incorrect trend.
Methodology: induction, deduction, synthesis, analysis, formal legal method, comparative legal method, logical method.
Conclusions. The evolution of methods of committing crimes and instruments of crime does not always require the evolution of the science of criminology and the appearance of its varieties. We just need to assess the prospects for extrapolation of methods and techniques for proving the circumstances of crimes in the era of digitalization of public relations from the point of view of the provisions of modern criminology and the entire criminal scientific block. We should only talk about forensic or expert research of digital (electronic or computer) information carriers. In criminology, it is logical to develop a new direction – the forensic study of electronic media of digital information and the use of computer expertise in establishing all the circumstances of the crime. Traditional forensic methodology should be applied here, which will be aimed at “linking” the electronic carrier of digital information and the digital information itself to a specific crime or to a specific person.
Scientific and practical significance. The research is aimed at orienting forensic theory and practice towards the study of specific objects and contributes to the fact that all these studies are further applicable to the practice of crime investigation, and not only for theoretical purposes.
Keywords: criminalistics, digital media of digital information, computer science, electronics, neural networks, investigator, investigation.
CRIMINAL LAW
Sargsyan A.A. Some problems of legislative regulation of the state of intoxication in the system of norms of the General and Special parts of the Criminal Code of the Russian Federation and the Republic of Armenia
Abstract
Mission: to analyze the legislative regulation of criminal liability of persons who have committed a crime while intoxicated, as well as to develop a number of proposals and recommendations aimed at improving the rules of General and Special parts in this area.
Methodology: deduction, formal legal method, comparative legal method.
Conclusions. A crime in a state of intoxication itself should not automatically entail the recognition of it as aggravating circumstances because intoxication can be a random episode in a person’s life, not an inherent trait. That is why it seems necessary to implement a detailed regulation and a differentiated approach to the various crimes committed in a state of intoxication. According to Art. 23 of the Criminal Code of the Russian Federation “a person who committed the crime in a state of intoxication caused by the consumption of alcohol, narcotic or other intoxicating substances, shall be subject to criminal liability”, and under Art. 27 of the Criminal Code of the Republic of Armenia “a person who commits a crime in a state of intoxication caused by the consumption of alcohol, narcotic or other intoxicating substances, shall not be exempt from criminal liability.” It should be noted that neither the Armenian Criminal Code nor Russian Criminal Code provide a legal definition of an intoxicated state, which in turn, creates difficulties in law enforcement practice. Numerous questions arise when regulating the criminal liability of persons who have committed transport crimes while intoxicated. The scientific article provides a comparative legal analysis of the Criminal Codes of the Russian Federation, the Republic of Armenia and some other countries, provides reasonable recommendations for improving legislation in this area. The scientific article provides scientifically based recommendations aimed at improving the current legislation and the practice of applying it in relation to the issue of criminal liability of persons who have committed a crime while intoxicated.
Scientific and practical significance. The conclusions obtained as a result of the research can contribute to filling gaps and elimination of shortcomings in the legislative regulation of criminal liability of persons who are intoxicated, as well as improving the practice of their application.
Keywords: alcohol intoxication, insanity, vehicle, voluntary and involuntary intoxication, administrative prejudice, criminal liability, aggravating circumstance, mental disorder, mitigating circumstance, double prevention.
Zhilkin M.G. On the question of criminal liability for unfinished illegal entrepreneurship
Abstract
Mission: the purpose of the article is to solve the problem of criminal prosecution for unfinished illegal entrepreneurship on the basis of generating high (particularly high) income.
Methodology: the research involves dialectical, logical, comparative methods, the method of intersectoral legal research and the method of systems analysis.
Conclusions: if during the investigation of the case it is not established that the person intended to make a profit from his illegal activities to perform work, use property, sell goods, provide services, or make a profit from a one-time transaction, then there are no grounds for administrative or criminal liability; if a person intended to illegally make a profit, but its estimated size cannot be specified, or the person actually made a profit in the amount of less than 2.25 million rubles and there is no data on the receipt of proper income in the future, then liability arises for an administrative offense under Article 14.1 of the Administrative Code of the Russian Federation; if a direct concrete intention of a person is established to receive income from illegal entrepreneurial activity in an amount exceeding 2.25 million rubles, there is documented information about the proper receipt of such income, but the income was not received due to circumstances beyond the control of the person, then there are grounds for criminal liability for attempted illegal business under Article 171 of the Criminal Code of the Russian Federation; the sign of causing large and especially large damage to citizens, organizations or the state as a result of illegal entrepreneurship should be excluded from Article 171 of the Criminal Code of the Russian Federation.
Scientific and practical significance. The article attempts to resolve a scientific discussion about the possibility of identifying the stage of an unfinished crime in illegal business, which is aimed at generating large (especially large) income. Practical recommendations on qualification of illegal entrepreneurship, which did not result in the extraction of high (particularly high) income, are offered. A proposal has been made to exclude the sign of causing major damage from the number of criminal signs as part of a crime under Article 171 of the Criminal Code of the Russian Federation.
Keywords: administrative offense; income; illegal business; unfinished crime; attempted crime; preparation for a crime; arbitrage practice; criminal liability; damage.
Lebedev M.V., Serebrennikova A.V. Artificial Intelligence: regulation problems in the criminal legislation of the Russian Federation
Abstract
Mission. The purpose of this article is to study the issue of applying the criminal legislation norms in the field of artificial intelligence regulation. In particular, the authors note some tendencies outlined and implemented by researchers in this area, as well as the material focuses on the complexity of those moments that are taken into account by the legislator when determining legal personality in the field of criminal law.
Methodology: for the purposes of this article, the authors used the general scientific methods of analysis, synthesis, induction, deduction and private scientific formal legal and dialectical methods.
Conclusions. As a result of the study, the authors come to the conclusion that at the present stage of development of science and technology, the legislator is not ready to solve the AI legal status problem in criminal law due to its poor study. At the same time, despite all the complexity and specificity of the problem, it can be safely argued that the solution of this problem is only a matter of time, and, soon, AI can be widely used as an information carrier, acting as a witness in criminal proceedings, or even a specialist (expert). The absence of such properties as a tendency to delusion, partiality, interest in the outcome of the case, conflict of interest, provide AI to the role of not only a law-abiding instance, but also a law-setting one (judge). The solution of this problem requires a significant amount of scientific research, and, first of all, the basis of such research should be imperative ideas about the functioning of AI in various conditions of its application.
Scientific and practical significance. The author’s view of the actual problem in criminal law science is presented. The results of the research and the conclusions formulated in this article can be used in the educational process when studying the sciences of the criminal law cycle in higher educational institutions.
Keywords: crime, artificial intelligence, rights and obligations, criminal legislation, technology.
LEGAL SUMMER SCHOOL AT THE UNIVERSITY OF POTSDAM
Lonnecke Knaisch. Medical euthanasia
Abstract
Mission. The aim of the article is to provide an overview concerning medical euthanasia in Germany. For this purpose, it is to be shown which actions are punishable. Furthermore, the will of the patient is dealt with. In recognition of current events, the business-like promotion of suicide, which has been declared unconstitutional, will be discussed.
Methodology: formal-legal method.
Conclusions. Indirect euthanasia, which covers the administration of pain-relieving drugs with a life-shortening side effect, is unpunished. The distinction between action and omission is not suitable in cases of euthanasia by technical interruption of treatment. The formulation “interruption of treatment” developed by the Federal Court of Justice is to be used here. The ruling of the Federal Constitutional Court on the business-like promotion of suicide is an important step towards enhancing the right to self-determined dying.
Scientific and practical significance. The study is intended to sensitize the reader to the problems within medical euthanasia. It is especially addressed to students or foreign scientists and practitioners who want to get an overview concerning this area of law.
Keywords: medical euthanasia, active euthanasia, indirect euthanasia, passive euthanasia, interruption of treatment, patient will, patient decree, § 217 StGB.
Oliver Kornblum. Breach of patient confidentiality
Abstract
Mission. This study is concerned with the question if § 203 I No.1 StGB offers protection to patients in practice or if it is unsuitable for practice. The offence codified in § 203 I No. 1 StGB will be explained; legal problems that occur in connection with the offence will be pointed out.
Methodology: legal method.
Conclusions: § 203 I No.1 StGB leads to difficulties of proof for the victim. Also, the determination of the patient’s will is problematic. This is confirmed by the small number of annual judgements on the issue. It is concluded that § 203 I No.1 StGB is mainly of preventive nature. This preventive nature makes further non-judicial measures necessary.
Scientific and practical significance. The study is intended to show physicians, legislators and the judiciary where there is a need for improvement and where improvements in patient protection are possible in reality.
Keywords: physician, medical secrecy, patient, § 203 StGB, breach of trust, divulgation.
Luca Sophie Ruehe. Corruption in the healthcare system – is the Criminal Code an effective measure to combat corruption in the healthcare system?
Abstract
Mission. Illegal forms of cooperation and corrupt actions of individual actors in the health care system can distort competition, make medical services disproportionately more expensive and weaken patient’s confidence in the integrity of professional decisions. Due to its considerable social and economic significance for the health sector, corrupt practices are to be countered by means of the German Penal Code (StGB).
Methodology: analysis of the historical development; formal legal method; systematic method; deduction.
Conclusions. In the future, a documentation principle could be introduced on a mandatory basis for all currently existing forms of cooperation. It is also recommended that clear criteria should be employed to differentiate between legitimate and criminally relevant conduct, for example on the basis of case constellations. In addition, the limitation of the group of offenders in § 299a StGB to academic health care professions should be counteracted by an amendment to the law. The group of offenders would have to be extended to include members of non-academic health care professions.
Scientific and practical significance. By including §§ 299a, 299b, 300 StGB, the legislator has closed a gap in punishability. The legislator has taken preventive action to enable competition without distortion. Due to the lack of criminal sanctions, only the professional and social law provisions applied until the introduction of the offences. These were not implemented by many actors. The means of the StGB to prosecute inadmissible forms of cooperation were necessary. Within each form of cooperation there must be an equivalence relationship between performance and consideration. Every service deserves appropriate and proportionate remuneration. Health professional decisions must always be free of economic considerations.
Keywords: corruption in the health sector, giving a bribe, receiving a bribe, offence gap, distinction between legitimate and criminal behaviour.
Iryna Torak. Refusal of treatment: genuine omission and false omission?
Abstract
Mission. The paper’s aim is to describe whether the refusal of treatment by a physician has an effect on his or her criminal liability. The legal starting point is formed by genuine (§ 323c StGB) and non-genuine offences of omission (§ 13 StGB). The focus of this study is on the medical obligations towards those in need of assistance and the patients. The circumstances under which a doctor may refuse to treat a patient are discussed.
Methodology: formal legal method, teleological interpretation of legal norms.
Conclusions: 1. Doctors are ethically obliged to provide assistance not only for professional reasons. The doctor’s duty to act must be justified especially in emergency situations. 2. The existing obligation to treat or assist can be limited. The type and extent of assistance depends on the circumstances of each individual case, such as the skills of the doctor or the availability of equipment. 3. If there is no emergency situation, the doctor may refuse to treat the patient.
Scientific and practical significance. The study demonstrates the doctor’s special legal position and its impact on his criminal liability. Especially in the context of the COVID-19 pandemic, it is important to investigate the risk of criminal liability for physicians.
Keywords: refusal of medical treatment, omission, § 323c StGB, §13 StG, guarantor status, obligation to act, on-call doctor.
Cora Wegemund. Criminal liability and organ transplantation
Abstract
Mission. The following article examines legal problems associated with organ transplantation and at the same time serves to illustrate the current legal situation on this subject. It is outlined which legal conditions modern transplantation medicine is subject to and how these have changed in the past years. Furthermore, the causes for the legal innovations are to be investigated: Events such as the scandal about the preferential treatment of patients on waiting lists due to manipulated files (“Organ Donation Scandal”), which became public in the summer of 2012, have had a lasting impact on the public discourse and have revived the general debate about the removal procedure and the distribution procedure. This year’s parliamentary decision on the continuation of the decision solution is also taken into consideration in the paper.
Methodology: Comparative law; analysis of the historic development.
Conclusions. Increased public interest and nationwide campaigns by the Federal Centre for Health Education have made the topic more visible in public discourse; at the same time, events such as the above-mentioned “Organ Donation Scandal” have fuelled public concern. The readjustment of criminal law regulations in recent years is intended to prevent abusive procedures. The decision solution, in which an organ donation requires consent, is still valid in Germany as a counter-model to the contradiction solution.
Scientific and practical significance. Due to future-oriented research and new practical findings, medicine is subject to continuous change more than other scientific fields. In addition, moral, religious and ethical aspects are constantly changing with the result that the dynamic nature of the subject must be taken into account in legislation to clarify questions of medical law, and an assessment from various perspectives is indispensable. In this respect, the work serves as an overview of the currently prevailing ethical-moral conceptions within the current legal framework, acknowledging the current state of scientific knowledge.
Keywords: Organ Donation Scandal, removal of organs, decision solution, contradiction solution, transplantation act.
Helene Ziegler. Medical treatment as physical injury
Abstract
Mission. The medical profession enjoys a special status in every society. It is always assumed that actions taken by doctors are in the interest of the patient, promote his or her well-being and that the patient has given his or her consent to the treatment. The conflict between the protection of the patient and the criminal liability of the doctor is to be pointed out and discussed again. The special position of the physician in criminal law will be demonstrated on the basis of the widely dispersed opinion in the academic world and the way in which the courts deal with this problem.
Methodology: analysis of the historical development; formal legal method.
Conclusions. The debate about the criminal classification of curative intervention as bodily injury, which has been going on for more than 130 years, still affects the medical profession today and could be brought to an end by the legislature. Research and jurisprudence agree that a criminal offence which addresses arbitrary medical action constitutes an application of §§ 223 ff. of the German Criminal Code to protect patient autonomy. However, it cannot be denied that the problem of medical treatment has given rise to a wide range of opinions which, with the creation of many new theories, have exhausted the limits of interpretation of the penal provisions and thus have a lasting impact on the understanding of bodily injury offences.
Scientific and practical significance. The work provides an overview of the opinions in the academic field and jurisprudence and enables a re-evaluation of the legal problem. Also, there still is a great demand for a criminal offence which adequately evaluates medical treatment under criminal law. It is made clear that the application of bodily injury offences is the satisfactory solution.
Keywords: medical intervention, patient autonomy, arbitrary healing intervention, §§ 223 ff. of the German Criminal Code.
Sarah Zimborski. Accounting fraud in the health care system
Abstract
Mission. The aim of this work is to examine the offence of accounting fraud. The focus of the paper is on the discussion of the objective and subjective elements of fraud (§ 263 StGB). Furthermore, the article presents a brief reference to practice. In general, the investigations presented in this article are intended to provide a brief overview of the problem of accounting fraud in the health care system.
Methodology: formal legal method.
Conclusions. The term accounting fraud is used for special cases of fraud in the German health care system. The basis of criminal liability is provided by § 263 of the German Criminal Code. In principle, a criminal liability for accounting fraud can only be considered if the objective and subjective elements of the offence of § 263 of the German Criminal Code are fulfilled. However, special problems arise in relation to accounting fraud in the health care system, which result from the complexity and lack of clarity of the German accounting systems.
Significance: The article shows that accounting fraud is not only a problem of criminal law, but that medical law and social security law must also be applied for punishment. Furthermore, the article aims to make clear that accounting fraud does not only comprise a single case, but that many different cases have to be subsumed under the term accounting fraud. Especially in practice, the discussion of accounting fraud plays an important role in order to inform the participants of the German health care system about the accounting problems and thereby to reduce the number of recorded cases in practice.
Keywords: § 263 of the German Criminal Code, natural person, unlawful intent to enrich, complex accounting systems.
MOSCOW CRIMINOLOGICAL PRACTICE
Goryunov V.S., Kotova K.A., Lebedkina A.M., Minyushkina A.R. Gangs as a type of teenage and youth destructive communities
Abstract
Mission: studying gangs as a type of teenage and youth destructive communities and formulating methods to prevent their emergence.
Methodology: dialectical method, analysis, synthesis, deduction, statistical method, systematic method, interview method, method of classification.
Conclusions: there are three levels of gang development: pre-criminal, unstable, and stable. The latter pose the greatest danger to society. The reasons for the mass prevalence of destructive youth communities in Russia are multifaceted in nature. This fact should determine the specifics of prevention measures. It is necessary to combine preventive measures of both general social nature and special criminological measures. Only through the integrated impact of state and public institutions it is possible to combat this social phenomenon.
Scientific and practical significance: the article raises an urgent problem in Russian society: the presence of a large number of teenage criminal gangs. The authors described the portrait of a person who enters a destructive community, the reasons for joining these groups, and also described the internal organization and rules of these communities through research of scientific literature and analysis of an interview given by a former gang participant. The authors presented a number of methods that involve the interaction of family, school, and state and are aimed at preventing the emergence of gangs.
Keywords: destructive communities, deviancy, delinquency, delinquent gangs, adolescent gangs, juvenile delinquency, risk zone, conformism, social institution, full personality, prevention measures, general social measures, special criminological measures.
INTERVIEW
Salamova S.Ya., Belova V.A., Gorbunov S.V., Tikhonov R I. Interview with Gennadiy Vladimirovich Dashkov, Doctor of Legal Sciences, Professor, Professor of the Chair of Criminology and Executive Law at Kutafin Moscow State Law University
Abstract
Mission: transfer of accumulated experience and knowledge. The Criminological Office of MSAL has organized a number of meetings of students with well-known scientists who have made a serious contribution to the development of the science of jurisprudence. One of these meetings was held with Gennadiy Dashkov, an outstanding scientist, specialist in criminology.
Methodology: interview.
Conclusions. The interview conducted by the students at the International Law Institute of Kutafin Moscow State Law University with G.V. Dashkov under the supervision of the Head of the Criminological Office S.Ya. Salamova allowed them to learn interesting biographical facts of his life, the history of criminology in the Soviet period and the specifics of the fight against corruption crimes. Many other important and challenging issues were also discussed. The students received professional advice that will help them in their studies and future practice.
Scientific and practical significance. The results of the interview can be used in the educational process during studying the course of criminology and other sciences of the criminal law cycle at higher educational institutions.
Keywords: interview, criminology, legal education, Criminology Office, science, research, Prosecutor’s Office.