Право/ 5. Уголовное право и криминология

C.e.s. Spektor L.A.

South – Russian state university of economics and service, Russia, Shakhty

The formation and development of legislation about responsibility for crimes against justice during the soviet period.

October Revolution of 1917, having destroyed bourgeois state and law, has created first socialistic state and law in the world. The process of creation in country of new criminal legislation distinguished by complexity and discrepancy. It was explained by certain conditions, which were: instability of new social relationships, the absence of experience of legislative practice at new authorities, rapid changes of different spheres of socio-political life of young state. In these conditions, having destroyed former judicial system and refused from achievements of previous criminal legislation, new authority began to create new judicial system and new legislation. At first criminal legislation was formed by passing new decrees, proclamations, enactments, which reflected the vital problems posed before new state for providing of safety of existence in the conditions of civil war and foreign intervention. Unfortunately, this circumstance is ignored after the dissolution of USSR both by historians, and lawyers. And groundless criticism looks biased, because objective conditions of creation of a state of new formation, the origin of new criminal legislation were not taken into account.

A. I. Boyko divides the soviet period into three stages: 1) 1917 – the beginning of 30-s; 2) the beginning of 30-s – the beginning of 60-s; 3) 60-s – December of 1991.

B. V. Volzhenkin points out four periods: 1) 1917- the beginning of 30-s; 2) the beginning of 30-s – 1956; 2) 1956 – the mid60-s; 3) the mid 60-s – the end of 80-s.

However, at the period of working up of socialistic criminal legislation there was neither “reception” of bourgeois law, nor succession of law or legal ideology. I. V. Stalin, characterizing first period of October revolution, wrote: “From the point of view of inner situation this period can be characterized as a period of destroy of old world in Russia, as a period of destroy of the whole staff of old bourgeois power”. And from first days of Soviet power legislative process of new state found reflection in different decrees, appeals, enactments of Council of People’s Commissars (CPC) of Russian Soviet Federative Socialistic Republic (RSFSR), of All –Russian Central Executive Committee (ACEC) and separate committees. The decree “About court №1” of 24^th November 1917 stressed that local courts solve questions in the name of Russian Republic and are guided in their decisions and verdicts by laws of overthrown government in so far as they are not repealed by revolution and don’t contradict to revolutionary conscience and legal consciousness. Old courts, the Directorate of Public Prosecutions, the Bar were abolished; and at the same time electoral local courts, which consisted of one judge and two periodical (public) assessors, and revolutionary tribunals, elected by the Soviets, were created. Periodical (public) assessors were elected instead of jurors; they didn’t only determine the guilt of accused but also punished and had equal rights with judges. Higher courts didn’t exist, the Congress of district judges were gathered for review of verdicts of the court. The decree “About court №2” of 7^th march of 1918 determined that court in civil and criminal cases is guided by laws, which were currently in force and were not abolished by Central Executive Committee (CEC) and CPC of RSFSR and didn’t contradict socialistic legal consciousness.

The Decree “About court №3” was enacted on June, 20, 1918, which prescribed to follow the decrees of Worker’s and Peasant’s government and socialistic conscience.

The Statute about public Court of RSFSR was passed on November, 30, 1918, according to it was necessary to follow the decrees of Workers’ and Peasants’ government and in case of their absence or imperfection – by socialistic conscience. The principle of collegiality was confirmed and the principle of publicity of judges was remained according to the Decree and this Statute. Public defense remained and public judges got the right to conduct preliminary investigation.

Post revolutionary period in Russia influenced greatly on development of judicial bodies and law of Northern Caucasia. CPC in it appeal to Muslims of Russia on November, 20, 1917 called upon: “The mountaineers of the Caucasus, henceforward your beliefs and customs, your national institutions are free and inviolable. You may unimpededly and free establish national life. You have a right for it.” Delegates of people of Terek, where representatives of Kabard and Balkaria were included, pointed out in Appeal to all workers of Terskaya region on January, 31, 1918: “within their territory all nationalities have a right to establish their national courts, which perform justice according to national customs and laws.” This resolution was officially confirmed on March, 2, 1981 on 11^th Congress of people of Terek with an amendment in the document “which don’t contradict main laws of Russian Federation”. On the basis of this resolutions the government of Terskaya republic, trying to avoid abrupt and radical breaking of way of life of kabardians, balkarians…, decided it expedient to preserve their system of sheriyat courts, trying cases on the basis of Muslim law. On the ground of such decision of district Soviet of Nalchik of March, 26, 1918 was abolished city’s oral court and instead of it district sheriyat court was formed. Hence, instruction of the Soviet stressed “all criminal cases, where judging and prisoner at the bar are Muslims, are subject to conducting of sheriyat court”. Judicial departments of rural people’s Soviets organized local and sheriyat courts. But state (public) courts and revolutionary tribunals functioned together with sheriyat courts.

On November, 24, 1921 CPC of RSFSR passed the decree “About punishments for false denunciations”, according to which persons were responsible for deliberately false denunciations to judicial authority and bodies of inquiry about committing of a crime by definite person and false evidence, given by witnesses, experts or translators during the process of inquest, inquiry or trial.

On March, 24, 1922 ACEC accepted the Criminal Code (CC) of RSFSR, the sources of which were the decrees of Workers’ and Peasants’ government of 1917-1922, “Guiding principles of criminal law of RSFSR” of 1919 and enormous, more then four-year practice of work of revolutionary tribunals and public courts. Pre-Revolutionary criminal laws lost their meanings at first years of Soviet power.

First CC of RSFSR of 1922 contained 9 articles, which defined the crimes against justice, but they were included in different chapters and this fact determined their object. For example, the chapter “Crimes against State” of part “About counterrevolutionary crimes” article (ar.) 60 established responsibility for concealment and complicity for some counterrevolutionary crimes according to ar. 57-67, which were not connected with direct committing of such crimes and in case of non-awareness about their ultimate aim.

Concealment of bands and their separate participants (ar. 76), non-information about well-known forthcoming or committed counterrevolutionary crimes (ar. 89), discharge of arrested from custody or place of imprisonment or assistance in escape (ar. 94), escape of arrested from custody or place of imprisonment, made by means of a mine, breaking in or any damage of fences, walls and etc. (ar. 95), and escape from places of deportations (ar. 95 in reduction of 11.11.22) were related to crimes against procedure of government, which were included in part 2 of chapter “Crimes against State”.

Pronouncing wrongful sentence by judges (ar. 111), illegal arrest and bringing to court, and compulsion to giving evidence during the inquest, commitment as preventive punishment from private or mercenary motives (ar. 112), concealment of bribe-takers (ar. 114), provocation of bribe (ar. 115), disclosure by officials of information, which mustn’t be divulged (ar. 117) were placed in chapter “Malfeasances and official crimes”. Corpus delicti of forced deprivation of liberty, made by method, which is dangerous for life and health of deprived, or which brings sufferings to him was also placed here (ar. 160).

Chapter “Crimes against life, health and dignity of personality” in part 5 “Other encroachments on personality and its dignity” included deliberately false denunciation (ar. 179) and deliberately false evidence (ar. 178) and deliberately false evidence and denunciation connected with: a) accusation in heinous crime; b) mercenary motives.

Ar. 123 was contained in chapter 111 “Violations of rules of separation of church from state”, it provided for responsibility for misappropriation of judicial functions by religious and church organizations.

CC of RSFSR was supplemented with ar. 104a by resolution of 2^nd session of ACEC of 10^th convocation on July, 10, 1923, this article determined responsibility for evading the responsibilities by the witness, expert, interpreter, and with ar. 104b, which determined responsibility for illegal disclosure of information of preliminary investigation and inquest; and decree of ACEC and CPC of RSFSR of August, 25, 1924 introduced responsibility for evading of responsibility by public assessors. At the same time the decree of ACEC excluded the responsibility for runaway. This was motivated by the fact that punishment for runaway is actually “the punishment for bad conditions in places of imprisonment and bad supervision of prison guards. Runaway is impossible, if imprisonment places answer their purposes”.

In 1922 judicial reform was carried out, according to it revolutionary tribunals were liquidated and provincial courts and the Supreme Court of RSFSR were created. Judges and jurymen were elected. “Regulations about Directorate of Public Prosecutors” and “Decree about the Bar” were confirmed.

Thus, independent chapter “Crimes against justice” was not pointed out in CC of RSFSR of 1922, though in it responsibility for a number of crimes, which encroached on procedural activity of the court and law machineries, was regarded. However CC of 1922, with its amendments and adoptions, contained a developed system of norms, capable to guard the activity of justice from criminal infringements of officials (judges, investigators, public prosecutors) and of other persons (witnesses, experts, translators, arrested, convicted), and of persons, who may violate the performance of justice by denunciations. Though it’s rather difficult to speak about the system of norms, which protected justice, because actually CC of RSFSR of 1922 lacked them. That’s why we couldn’t agree with the statement of V. A. Kim, that a new epoch in development of codified and systemized soviet criminal legislation had begun with adoption of CC of RSFSR in 1922.

In November of 1926 the 2^nd session of ACEC of 11^th convocation confirmed CC of RSFSR of 1926, which contained 7 articles, which provided responsibility for illegal discharge of arrested from imprisonment places or assistance in his runaway (ar. 81); runaway of arrested from custody or imprisonment place, runaway from place of obligatory settling, as well as unauthorized return of expelled to places, forbidden for living or from the way of following it (ar. 82-2), evasion by expelled of correctional-labor works (ar. 82), evasion by the witness from appearance and refusal to give evidence, preventing witness from appearance, evasion or refusal of expert, translator or witness of inquest from fulfilling their duties, hindering public assessor from appearance, as well as hindering witness or public assessor from fulfilling their duties (ar. 92), deliberately false denunciation, deliberately false evidence given to judicial-investigating body (ar. 95), announcement of information of preliminary investigation, inquest or check-up inspection without permission of public prosecutor’s, investigator or the person, holding the inquest (ar. 96); passing of illegal sentence, decision or ruling by judges (ar. 114); illegal arrest or illegal bringing to court, compelling for giving evidence (ar. 115).

All indicated crimes were placed in chapter 11 “Other crimes against the way of government” (ar. 81, 82, 92, 96 of CC) and in chapter 111 “Malfeasances” (ar. 114, 115 of CC). at the same time unlike CC of RSFSR of 1922, CC of RSFSR of 1926 placed false denunciation and false evidence (ar. 95) in chapter “Crimes against the way of government” but not in chapter “Crimes against life, health and dignity of personality”, as it was before. New corpus delicti – evasion or refusal from appearance by witness, expert, translator and witness of inquest, the same as of public assessor from fulfilling his (her) duties or hindering public assessor from fulfilling duties, emerged.

Chapter 7 “Crimes against property” included the norm about appropriation of other’s property given for definite aim or embezzlement of it (ar. 168).

CC of RSFSR of 1926 regarded deliberately not promised concealment as complicity, and that’s why as non-denunciation about crimes, it was not considered an independent kind of crime. For example, ar. 18 of CC determined that denunciation about committed or preparing crime results in criminal responsibility only in special cases indicated in laws. Since list of crimes non-denunciation about which considered as a crime was not mentioned in CC, so non-denunciation was punished only for separate crimes, for example besides counterrevolutionary crimes (chapter one) there was also responsibility for some particularly dangerous for USSR crimes against the way of government - mass disorders, racketeering, falsification of banknotes (chapter two).

“Court and Office of public prosecutors are the bodies of government, that’s why crimes against them must be placed in chapter “Crimes against the way of government””, - such opinion was expressed because of such approach of legislator. We consider that from position of analyzed period such suggestion was correct, because it reflected the idea to put all crimes against justice in one chapter. And criticism of this suggestion from today’s point of view is incorrect. But I. S. Vlasov is right stating that: “during the process of singling out groups of crimes against justice; bodies, realizing and assisting justice interest legislator not as a part of state machinery or branch of government, but as a special “mechanism”, fulfilling tasks of exceptional importance”.

Ar. 125 was situated in chapter 4 “Violation of rules about separation of church from state”, provided for responsibility of misappropriation of judicial functions by religious and church organizations, ar. 203 of chapter 10 “Crimes making up the remains of patrimonial regime” established the responsibility for misappropriation of judicial functions, making decisions according to customs of native population (adats and so on).

Thus, appearance of new corpus delicti, though placed in different chapters, was conditioned by formation of judicial system in country, and as far as public courts began to function; along with it the necessity of use of measures of criminal compulsion not only for participants of the process but also for persons, hindering them from fulfilling their duties appeared to ensure the normal functioning of the court. Non-denunciation about preparing or committed embezzlement of public (socialistic) property was punished according to ar. 58/12 of CC of RSFSR because of the enactment of the Law “About protection of property of state enterprises, kolkhozes and co-operations and consolidation of public (socialistic) property”.

Later ar. 5 of decree of Presidium of Supreme Soviet of USSR “About criminal responsibility for embezzlement of state and public property” of June, 4, 1947 established responsibility for non-denunciation about trustworthy known embezzlement, committed in big amounts, repeatedly or by organized group. Ar. 3 of decree of Presidium of Supreme Soviet “About strengthening of protection of private property of citizens” of June, 4, 1947 provided responsibility for non-denunciation about known preparing or committed embezzlement by means of robbery.

An important meaning had the decree of CEC and CPC June, 25, 1952, which obliged “court and prosecutor’s office to make officials answer in all cases of infringing the rights of working-people, particularly in cases of illegal arrests, searches, confiscation of property and etc., and to inflict on guilty strict measures of penalty.

CC of RSFSR of 1960 first in history of soviet criminal legislation singled out the independent chapter 8 “Crimes against justice”, including in it such corpus delicti as instituting criminal proceedings against certainly innocent (ar. 176); pronouncing deliberately unjust sentence, decision, ruling or resolution (ar. 177); deliberately illegal arrest or detention (ar. 178); compulsion to give evidence (ar. 179); deliberately false denunciation (ar. 180); deliberately false evidence (ar. 181); refusal or evasion by witness or victim from giving evidence and by expert from giving conclusion (ar. 182); compulsion of witness or victim to give false evidence or of expert to give false conclusion or bribery of this persons (ar. 183); announcement of information of preliminary investigation or inquest (ar. 184); embezzlement, expropriation and suppression of property, distrained or arrested (ar. 185); escape from the places of deportation (ar. 186); unauthorized return of deported to the places, banned for living (ar. 187); escape from imprisonment places or from custody (ar. 188); concealment of crimes (ar. 189); non-denunciation about crimes (ar. 190).

Analysis of indicated crimes shows new, not included in CC of 1926, actions, new types of crimes, such as instituting criminal proceedings against certainly innocent, compulsion of witness or victim to give false evidence or of expert to give false conclusion or bribery of this persons appeared in CC of RSFSR of 1960. Responsibility for beforehand promised concealment was not also mentioned in previous CC. Any kind of concealment, no matter was it beforehand promised or not, was considered as participation in crime according to ar. 17 of CC of RSFSR of 1926.

At the same time such actions as illegal arrest, evasion of fulfilling duties by public assessors, evasion of interpreter or witness of inquest from appearance to bodies of inquest, to investigating or judicial bodies and refusal of this persons to fulfill their duties, hindering public assessor from appearance or fulfilling their duties by person, on who the assessor financially or officially depends; illegal discharge of arrested from custody or place of imprisonment or assistance in his escape.

At the same time it’s impossible not to pay attention on strengthening of responsibility for deliberately false denunciation and deliberately false evidence. At the same time such corpus delicti as pronouncing deliberately unjust sentence, decision, ruling or resolution; compulsion to give evidence and escape from imprisonment places or from custody without aggravating circumstances were singled out. Independent corpus delicti were: compulsion to give evidence; deliberately false denunciation; deliberately false evidence; escape from the places of deportation or from the way of following it; unauthorized return of deported from the placed, banned for living, from imprisonment places or from custody.

There was an opinion, that the formation of system of crimes against justice with singling out the actions, related with abuse and excess of authority during the realization of justice by its representatives and other persons favored the existence of view on the system of crimes against justice, the basis of which was the subject of the crime. It’s possible to agree with such opinion but it’s necessary to mention that from one hand legislator didn’t ensure sufficient independence of activity of judicial bodies. From the other hand – didn’t differentiate bodies directly performing justice – court, and bodies, assisting court in performance of justice.

Ar. 88/2, which provided responsibility for beforehand not promised concealment of particularly dangerous and other crimes against State and non-denunciation about them, was introduced according to the Decree of Presidium of Supreme Soviet of USSR “About addition to the Law about criminal responsibility for State crimes” of February, 21, 1961.

According to Decree of Presidium of Supreme Soviet of USSR of March, 11, 1977 CC was added by ar. 188/1, which established responsibility of convicted for evasion from imprisonment; and editing changes to ar. 180, 183, 185, 186 were introduced and ar. 188/3 of CC of RSFSR, which established responsibility for persistent non-obedience to requirements of correctional-labor institutions was introduced by Decrees of Presidium of Supreme Soviet of RSFSR of October, 11, 1982; December, 3, 1982; July, 16, 1984; September, 13, 1983.

Judicial reform, which began in second part of 80-s, caused the necessity of strengthening of legal guarantees of independence of judicial power in performance of justice; it found reflection in perfection of system of corpus delicti of crimes against justice. New articles 176/1, 176/2 and 176/3 determining responsibility for interference in settling legal cases, for threat or insalt towards judge or public assessor were introduced in CC according to Law of RSFSR “About responsibility for disrespect for court” of November, 2, 1989 and by Decree of Presidium of Supreme Soviet of December, 11, 1989.

Since 1988 new judicial reform had began but it has been interrupted by dissolution of USSR.