The highest position in the criminal hierarchy: problems of application of Part 4 of Article 210 and Article 210.1 of the Criminal Code of the Russian Federation

Novozhilov Sergei Sergeevich Postgraduate Student, Department of Criminal Law, Moscow State Law University named after Kutafin O.E. 125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9 sbtantiterror@gmail.com Other publications by this author

In the conditions of the economic crisis, unstable economic situation, the introduction of economic sanctions against the Russian Federation, high unemployment, the presence of negative trends in the social sphere and other determining factors, at present we can talk about the presence of indicators of the growth of organized crime, the structural elements of which penetrate into various spheres of society, have an extremely negative impact on development of the state and civil society institutions.

A special position in the criminal hierarchy of organized crime is occupied by "thieves in law" and authorities of the criminal environment, including those who do not have the status of "thief in law", but by virtue of their authority in a negative environment, they are able to influence certain elements of the operational situation.

By virtue of their "special criminal status", persons occupying the highest position in the criminal hierarchy carry out general coordination of criminal activities, create stable criminal ties between various organized groups, determine the main directions for strengthening and further expanding the spheres of criminal influence, distribute funds obtained by criminal means, look for ways to commit serious and especially serious crimes, in this connection, they represent the greatest public danger.

Criminal liability for the very fact of leadership of such persons in the criminal hierarchy was not previously provided for by criminal law, as a result of which they managed to evade criminal responsibility for leadership in the criminal hierarchy for years, since occupying the highest position in the criminal hierarchy and being in the shadows, they themselves did not commit crimes, acting conspiratorially and through persons controlled by them.

In order to effectively combat persons occupying the highest position in the criminal hierarchy, on April 1, 2019, the President of Russia signed Federal Law No. 46-FZ "On Amendments to the Criminal and Criminal Procedure Code of the Russian Federation in Terms of Countering Organized Crime.

The Criminal Code of the Russian Federation has been supplemented with Article 2101 "Occupying the highest position in the criminal hierarchy", designed to improve the Criminal Code in terms of tightening criminal liability of organizers and leaders (ringleaders) of criminal communities.

The novelty of this article was bringing to criminal responsibility not for the commission of an act, but for the very fact that a person occupies a higher position in the criminal hierarchy.

The introduction of this article into the criminal law of the Russian Federation is not new in criminal law, it is a continuation of the application of the theory of the "dangerous state of personality", described in the works of representatives of the anthropological school of criminal law students Cesare Lombroso – Enrico Ferri and Rafael Garofalo "Criteria of a dangerous state" in 1880 and further developed by the most prominent French criminologist Jean Pinatel and the Italian scientists Filippo Gramatica and Benino di Tullio "Principles of clinical Criminology and forensic Psychiatry", published in Rome in 1960.

According to this concept, persons in a "dangerous state" (these include professional and so-called incorrigible criminals "prison regulars") should be subjected to preventive detention in order to isolate them from society. At the same time, under the "dangerous state" of the personality, R. Garofalo understood the permanent (permanent) and immanent (inherent) propensity of a person to commit crimes.

After the introduction of Article 2101 of the Criminal Code of the Russian Federation and the beginning of its application, a number of problems arose in investigative and judicial practice that were previously characteristic of Part 4 of Article 210 of the Criminal Code and inherited into a new criminal law norm.

Insufficient effectiveness associated with a small number of sentences under Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation is due to the very design of these compositions, the presence of a special subject of the crime in the absence of a definition of the specified subject, both in the disposition of the criminal law norm and in the resolution of the Plenum of the Supreme Court of Russia, problems related to proving these crimes, problems related to with the presence of competition between Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation (the simultaneous presence of a general and special norm), problems of the objective side of the crime (significant difficulties associated with determining the place, time, method of committing a crime), the lack of departmental instructions and methodological recommendations for the investigation of criminal cases provided for in Part 4 of Article 210 and art. 2101 of the Criminal Code of Russia, etc.

         The combination of these factors significantly reduces the effectiveness of these articles.

In addition, the existence of the identified problems is debatable in the expert scientific community, which also prevents the development of a unified legal position on the issue under consideration.   

         In particular, a number of scientists, for example, T.V. Stukalova, P.A. Skoblikov, V.V. Agildin, S.E. Lovtsevich, A.A. Lokhova believe that the criminal law norm provided for in Article 2101 of the Criminal Code of Russia requires revision.

         In particular, T.V. Stukalova, citing arguments related to the low effectiveness of the application of Article 2101 of the Criminal Code of the Russian Federation, points out: "It is necessary to develop the concept of a person occupying the highest position in the criminal hierarchy and reflect it officially in legislation, which will ensure the legality, validity and fairness of criminal prosecution under the article in question, and will provide an opportunity to ensure the unity of law enforcement, investigative and judicial practice, throughout the country"^[1].

         P.A. Skoblikov notes: "Unfortunately, there are prerequisites for an arbitrary interpretation of the criminal law with grave consequences for the accused, which means that there are prerequisites for abuse and corruption. This situation is dangerous, and therefore the provisions of Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation need improvement, criminological justification and a clear statement in the law"^[2]. A similar point of view is shared by V.V. Agildin, S.E. Lovtsevich, A.A. Lokhova.^[3]

As the main arguments justifying the position related to the need to improve the criminal law norms provided for in Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation, these scientists cite significant difficulties related to the issues of qualification, interpretation, proof and, as a consequence, the presence of a small number of sentences since the entry into force of these articles.

         It should be noted that the disposition of Part 4 of Article 210 of the Criminal Code of Russia, which for the first time introduced the concept of "a person occupying the highest position in the criminal hierarchy", was also subjected to reasonable criticism, in particular, Professor L.D. Gaukhman, a recognized specialist in the field of criminal law and criminology, noted: "the qualifying feature of Part 4 of Article 210 of the Criminal Code is only named, but not defined. It is not clear from the legislative wording what is meant by the criminal hierarchy and the highest position in it, what is the territorial scale of the highest position in the criminal hierarchy, as well as who and on what basis determines that a person occupies that position, which is a qualifying sign of a crime."^[4]

         Other scientists also drew attention to the significant shortcomings of the disposition of the criminal law norm, for example, V.A. Popov believed: "a person occupying the highest position in the criminal hierarchy is a criminological concept, and not a criminal law one, which is why the introduction of this concept into the criminal law is a legislative error"^[5].

         Some researchers, for example V.M. Bykov, P.V. Agapov, S.V. Petrov, D.A. Grigoriev, generally proposed to exclude Part 4 of Article 210 of the Criminal Code of Russia as untenable^[6]. Because for eight years, since the entry into force of Part 4 of Article 210 of the Criminal Code of Russia (2010-2017), not a single person has been convicted for the act specified in it.

Only in 2018 there were some changes, as a result of which one guilty verdict was handed down by the Altai Regional Court against M.A. Chkadua (criminal nickname "Mamuka Galsky").^[7]

         At the same time, until 2019 inclusive, according to Part 4 of Article 210 of the Criminal Code of Russia, a total of three sentences were handed down, two of them were acquitted, and one person was found guilty.^[8]

         In addition, it should be noted that the disposition of the criminal law norm provided for in Article 2101 of the Criminal Code of the Russian Federation does not imply that a person commits any actions using his status and the presence of only the status itself is sufficient for criminal liability.

In this regard, a number of researchers, for example, V.N. Burlakov and V.F. Shchepelkov note: "the status itself becomes an organizing factor and acquires a social danger"^[9]. Which, of course, contradicts the provisions enshrined in Article 8 of the Criminal Code of the Russian Federation "The basis of criminal liability is the commission of an act containing all the signs of a crime."

The disposition of this norm was criticized by N.G. Ivanov, who noted: "Does the fact of a higher position in any hierarchy indicate an act, especially since it does not exist"^[10].

The problem, in my opinion, is that to date neither the Criminal Code nor the acts of judicial bodies (the Plenum of the Supreme Court of Russia) contain a normative definition of the concept of "a person occupying the highest position in the criminal hierarchy."

The key concepts are not disclosed: "the person occupying the highest position in the criminal hierarchy" and the concept of the "criminal hierarchy" itself is not disclosed, which are used in the disposition of articles Part 4 of Articles 210 and 2101 of the Criminal Code of Russia.

It is not clear which persons should be classified as "occupying the highest position in the criminal hierarchy"? Only thieves in law or authorities of the criminal and criminal environment capable of having a significant impact on the operational situation, but not having the status of a thief in law, or positing and looking?

What should be understood by "the highest position in the criminal hierarchy"? The existing Resolution of the Plenum of the Supreme Court of Russia dated June 10, 2010 No. 12 "On the judicial practice of considering criminal cases on the organization of a criminal community or participation in it" also does not clarify the essence of the definition under consideration.

P.A. Skoblikov notes: "Many changes, and they are constantly being made to the Criminal Code of the Russian Federation, are far from complying with quality standards and rules of legal technique, innovations abound in evaluative concepts, such as "the highest position in the criminal hierarchy" ^[11].

According to E.V.Cherepanova: "more than two hundred articles of the Criminal Code of the Russian Federation contain evaluative concepts ("traumatic situation", "special cruelty", "significant harm", etc.), the content of which is not disclosed by the legislator"^[12].

Thus, due to the fact that the criminal law does not contain a legal interpretation of the terms in question, there is a problem with the definition of the subject of the crime itself, provided for in Part 4 of Article 210 and Article 2101 of the Criminal Code of Russia (there is a special subject).

If we look at the experience of other states in this matter, it should be noted that in Georgia, for example, only "Thieves in law" of Article 223.1 of the Criminal Code of Georgia are brought to criminal responsibility for occupying the highest position in the criminal hierarchy.

As L.D. Gaukhman notes, the sign of "a person occupying the highest position in the criminal hierarchy is formulated very vaguely, through the use of a combination of terms intended for general – vague and inaccurate – reasoning about crime and crimes, therefore it is obviously inapplicable in investigative and judicial practice."^[13]

Thus, the concept of "superior position" and "criminal hierarchy" are evaluative in nature, which is a significant problem that prevents the effective application of Part 4 of Article 210 and Article 2101 of the Criminal Code of Russia.

An important problem of the application of Part 4 of Article 210 and Article 2101 of the Criminal Code of Russia is the competition of these criminal law norms.

In this case, we can talk about the simultaneous presence of a general and special norm in the Criminal Code of the Russian Federation. To bring a person to criminal responsibility under Article 2101 of the Criminal Code of the Russian Federation, it is enough for a person to occupy the highest position in the criminal hierarchy, and according to Part 4 of Article 210 of the Criminal Code of the Russian Federation, responsibility comes for organizing a criminal community (criminal organization) by a person occupying the highest position in the criminal hierarchy. At the same time, in accordance with Part 3 of Article 17 of the Criminal Code of the Russian Federation "If a crime is provided for by general and special norms, there is no set of crimes and criminal liability occurs according to a special norm", additional qualification under Article 210.1 of the Criminal Code of the Russian Federation is not required.

At the same time, a number of researchers, for example S.I. Muravyev notes: "In essence, at the same time criminal liability is provided for the participation of leaders of the criminal world in special meetings of heads and representatives of the criminal hierarchy. In Article 210 of the Criminal Code of the Russian Federation, this act, as a crime, is specifically singled out and described in the disposition, and in Article 2101 of the Criminal Code of the Russian Federation it is not, but as can be seen with a detailed retrospective criminological analysis of the system of the domestic criminal hierarchy, the second corpus delicti already includes the first, since the status of leaders of the criminal world obliges them to attend this kind of meetings"^[14].

The subject of proof is not properly defined.  

In accordance with paragraph 1. Part 1 of Article 73 of the Code of Criminal Procedure of the Russian Federation, the event of a crime (time, place, method and other circumstances of the commission of a crime) is subject to proof in criminal proceedings.

The prosecution must prove that there is a criminal community (criminal organization) operating on the territory of the Russian Federation, which has a certain hierarchy, in which there is a higher position, indicate what it is, establish its signs, the powers of the person occupying the highest position.

As for the time, it is necessary to clearly establish when and under what circumstances the accused took this higher position, where it happened, in what way he took this position. At the same time, it should be noted that there is a legal uncertainty of the moment of the beginning and end of the crime. Since the crime has a formal composition and is ongoing.

Even after serving a criminal sentence under Article 2101 of the Criminal Code of the Russian Federation, a person does not cease to occupy the highest position in the criminal hierarchy and does not lose his status. Moreover, the main purpose of the punishment "correction of the convicted person" also cannot be achieved.

In addition, it is also necessary to establish the intention of the accused (direct or indirect) to occupy the highest position in the criminal hierarchy, which is often also practically impossible to do, since the interrogation of witnesses in a court session is practically impossible.

According to the rules of the informal procedure for accepting a person into the thieves' community of "coronation", three persons already occupying the status of "the highest position in the criminal hierarchy" should participate in it and giving evidence by such persons contradicts their principles (concepts), and taking into account the fact that the "coronation" procedure takes place, as a rule, in compliance with increased measures of conspiracy, it is very difficult to collect the necessary evidence.

T.V. Stukalova points out: "If a person was not present at the "coronation", then he cannot always refer to the source of his awareness of the fact that a person has a "higher position in the criminal hierarchy, or indicate that this is an assumption or a guess. But in accordance with paragraph 2 of Part 2 of Article 75 of the Criminal Procedure Code of the Russian Federation, such evidence is considered inadmissible. In addition, there is the problem of detecting and collecting evidence"^[15].

It is not uncommon for a person to occupy the highest position in the criminal hierarchy, but his status is temporarily suspended until certain reasons are clarified, while a person may be in this position for years until these circumstances are clarified at a "thieves' meeting".

The issue is complicated by the fact that in this situation, some of the persons occupying the highest position in the criminal hierarchy may recognize the said person's criminal status, even after his "uncrowning", considering, for example, the decision of a thieves' meeting is not legitimate for various reasons, including the incomplete presence of a quorum or the absence of part of the necessary "thieves' mass".

Currently, the state does not have a mechanism for suppressing the crime in question, since the moment of the end of the crime can only be the voluntary refusal of a person from his status, the termination of his status by the decision of a thieves' meeting (beating on the ears), or his death.

Often, this status is lifelong and the refusal of it with unauthorized withdrawal from the criminal community (criminal organization) entails the murder of the person wearing it.

A characteristic feature of the modern period is the fact that public denial of one's criminal status to law enforcement officers also does not lead to its loss. For this reason, it is often impossible to determine the moment of the end of the crime in question at all, since even after publicly renouncing his "criminal status", the person continues to occupy the highest position in the criminal hierarchy.

Problems are also characteristic of determining the place of commission of a crime (Article 152 of the Criminal Procedure Code of the Russian Federation) "A preliminary investigation is carried out at the place of commission of an act containing signs of a crime," in addition, in accordance with Article 32 of the Code of Criminal Procedure of the Russian Federation, "A criminal case is subject to consideration in court at the place of commission of a crime."

Due to the significant difficulties in establishing the crime scene ("coronation" can take place on transfers, in isolation cells, indoor prisons and on the outside), some persons (potential witnesses) may not be present at the "coronation" at all and be notified of its results by means of "malyava" or "thieves' run", in criminal cases cases are often replete with hackneyed phrases "was recognized as a person occupying the highest position in the criminal hierarchy" under circumstances not determined by the investigation, in a place not determined by the investigation," at a time not determined by the investigation, which is also unacceptable, since it leads to the collapse of criminal cases in court and the imposition of acquittals.

Based on the above, we consider it necessary to offer:

1. In order to develop a unified legislative approach to the term "person occupying the highest position in the criminal hierarchy", introduce its legislative definition in the note to Article 2101 of the Criminal Code of Russia, by analogy with Article 285 of the Criminal Code of Russia, in the note to which the definition of "official" is given.

2. With regard to the existence of competition of criminal law norms provided for in Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation, it should be noted that the issue of this competition should be resolved in accordance with the rule enshrined in Part 3 of Article 17 of the Criminal Code of the Russian Federation "if a crime is provided for by general and special norms, there is no set of crimes and criminal liability occurs under a special normal.

3. The Supreme Court of the Russian Federation must analyze the problems of investigative and judicial practice under Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation and adopt a corresponding Resolution of the Plenum, in which to make recommendations on bringing to criminal responsibility persons occupying the highest position in the criminal hierarchy.

4. In addition, it is difficult not to agree with the opinion of a number of scientists, in particular T.V. Stukalova, who points to the need to adopt a Federal law "On countering organized Crime", which would establish the basic principles of countering organized crime, legal and organizational foundations for preventing and combating organized crime. In a separate article of this law, it is necessary to clarify the main terms and categories used, such as "criminal hierarchy", "higher status", "special cruelty", "significant harm", minimizing the impact of "evaluation categories" on the effectiveness of criminal law norms.

5. In order to timely monitor and monitor the effectiveness of the application of important legislative innovations, including in the criminal law sphere, from among the deputies of the Parliament of Russia to form a commission to assess and improve the effectiveness of the application of newly introduced legislative norms. This measure will allow, in an operational mode, to monitor the effectiveness of the application of certain articles of the Criminal Code of the Russian Federation, to make appropriate amendments in a timely manner, to abolish outdated and mistakenly introduced provisions, to eliminate conflicts of criminal law norms. The need to introduce this measure has been repeatedly emphasized by Professor P.A. Skoblikov, but so far it has not found its application in practice.

6. In addition, it should be noted that the shortcomings of the criminal law can be largely compensated not only by reasonable and convincing explanations of the Plenum of the Supreme Court of Russia on this issue, but also by departmental instructions and methodological recommendations for the investigation of criminal cases provided for in Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation, which have not been developed to date that also does not allow the law enforcement system as a whole, bodies and units to fully combat persons occupying the highest position in the criminal hierarchy and to document complex crimes in the investigation according to the established scheme.

These proposals will make it possible to increase the effectiveness of the application of Part 4 of Article 210 and Article 2101 of the Criminal Code of the Russian Federation by minimizing the consequences of "arbitrary" interpretation of the criminal law, and hence the prerequisites for abuse and corruption in general, completely eliminating the negative actions of the evaluation categories.

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